Mr Justice Underhill, the former President of the EAT, has proposed some fundamental changes to the existing Tribunal Rules, including:
- Requiring an early paper sift of weak cases to ensure employment judges consider these earlier in the process and dismiss claims with no arguable complaint or response. This is something that has mooted for some time and would bring employment tribunal process closer to that in the Employment Appeal Tribunal, where a much more proactive approach is taken to establishing which cases have merit.
- Removing the GBP20,000 cap beyond which costs awards must be referred to the county court for assessment
- Combining separate case management discussions and pre-hearing reviews into ‘preliminary hearings’
- Enabling tribunals to set timetables for oral evidence and submissions – enforced by guillotines where necessary
Less fundamental changes are:
- Explicitly requiring tribunals to give reasons for all decisions on disputed issues, although recognising that these can be very short in appropriate cases
- Changing the withdrawals process so that when one party ends the dispute the other does not have to signal its intention to end the claim via an application to the tribunal
- Providing for the Presidents of the employment tribunals in England and Wales or Scotland to publish accessible, non-prescriptive ‘presidential guidance’ to give parties a better idea of what to expect from the tribunal process. The guidance is intended to address a perception that judges, particularly at different centres, deal with the same kinds of hearing in widely different ways
Mr Justice Underhill saw no case for changing the substantive criteria for the award of costs, wasted costs or the making of deposit orders. However, the separate plans to introduce fees into the tribunal system will be a major change.
Employment Relations Minister, Norman Lamb, welcomed the ‘sensible, well thought of recommendations’, stating that the Government’s intentions will be announced ‘in due course’.