In a new series contributed by solicitors Bevans, James Taylor takes a look at the new procedural rules that are now in force at Employment Tribunals.
New procedural rules are now in force at Employment Tribunals. Businesses facing claims, and those bringing them, will need to be aware of strict time limits. There will be less latitude given to those who are unaware of the rules or who do not comply with the time limits.
New forms will be used from April 2005 which ask for more detailed information than the old ones. Some aspects of these regulations mirror the Civil Procedure Rules which have been used in the County and High Courts since 1999.
For example, the regulations should put a stop to the vexatious employee who lodges an application out of spite. The regulations re-affirm and strengthen the Tribunal’s ability to order such a person to pay the Respondent company’s costs. If the company does not choose to instruct a professional representative it can still ask for a payment for “preparation time” in the event that the Tribunal decides that the claim has been issued on a misconceived basis or conducted “vexatiously, abusively, disruptively or otherwise unreasonably”.
There is also now provision for professional advisors to face costs orders if their clients have been badly advised.
Another borrowed notion is that of an overriding objective which will govern how the Tribunals apply the rules. The overriding objective is to deal with cases “justly” (it may come as no surprise to some that this is a change in the procedures !) which is said to involve making sure each party is on an equal footing, that cases are dealt with swiftly, fairly and in ways which are proportionate to the complexity of the issues. Saving expense is also part of this objective. So, if you are in the right but it will cost a fortune to prove it, you may find that the costs stop you from pursuing that avenue and you have to fight your corner another way.
There is still no legal aid available for Tribunal work so it is hard to see how equality of arms can be achieved. In many cases, applicants now have legal expenses insurance, which usually covers the cost of employment related claims. This means that they will normally receive the whole of any damages awarded without having to pay their advisors out of those sums.
Prior to submitting a claim, in many instances, Applicants will have to show that they have complied with their employer’s grievance policy. Respondents will now have 28 days to reply to a claim and can apply for an extension of time before that first limit expires. If no response is made, or if the Tribunal rejects the response because it does not comply with the rules, the respondent will not be allowed to play any part in the hearing of the claim. The Tribunal will hear one side only and make its decision based upon its view of that, without any assistance or explanation from the employers.
In these circumstances it will be more important than ever to get the procedure right.
For more details, the DTI’s website will assist. www.dti.gov.uk
