Partner Article

Reform to the Employment Tribunal Rules

Out with the old, in with the new?

Although they do not come into force until 29 July 2013, the new Employment Tribunal rules, The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, have already generated considerable debate and spawned a number of legal challenges. If one thing is certain it is that Lord Justice Underhill’s reforms have polarised opinion amongst employment lawyers and their clients.

But why the furore? Systematic reform is an inevitable if not vital component in any responsible legal system. In England and Wales civil proceedings undergo regular evolution with the Civil Procedure Rules in a near-constant state of updating via Practice Notes if not amendments to the rules themselves. Why should the Employment Tribunal be any different?

It may not surprise many to hear that money is at the root of the key concerns. This is because the new rules introduce fees to Employment Tribunal proceedings for the first time.

Under the new rules, depending on the cause of action they wish to pursue, a would-be claimant will need to pay £160 or £250 to issue their claim and then a further £230 or £950 once their claim reaches a hearing. A remissions system will operate to assist those would-be claimants without the means to pay the fees, however, early indications suggest that full remission of fees is unlikely to be granted other than in the most extreme cases.

Two separate challenges to the new rules have already arisen, both in the form of judicial review; one an application to the High Court in England and another a petition to the Court of Session in Scotland. The main arguments appear to be that the introduction of fees prohibits the enforcement of European Community law and indirectly discriminates against women, who (typically) earn less than men.

The outcome of the challenges remains to be seen.

Nevertheless, the new rules need not be viewed so pessimistically by claimants and their representatives.

Firstly, in the event of a successful claim the claimant will recover his or her fees from the respondent in addition to any award, representing an additional penalty for unsuccessful employers.

Secondly, the introduction of fees should focus practitioners on carrying out diligent assessment of the merits of their clients’ prospective claims prior to submitting these, which will weed out meritless or vexatious claims. Responsible practitioners do this already, however, with the introduction of greater judicial discretion in relation to costs orders, early assessment may even spare claimants’ facing costs awarded against them which they would have incurred had they proceeded straight to submission of a meritless claim.

Thirdly, the remissions system will undoubtedly offer assistance to many claimants, including the most disadvantaged, whilst in the case of particularly strong claims it is not inconceivable that firms will introduce funding arrangements to assist would-be claimants based on the higher prospects of their claims succeeding.

Aside from fees the new rules provide for greater flexibility which, combined with increased focus on identifying the issues an early stage, may shorten the length of claims, reducing legal costs for those funding proceedings on an hourly rate basis.

In summary, despite the doom and gloom the new rules have the potential to streamline proceedings and create a more efficient Employment Tribunal system, which will be a benefit to all. How the principles are put into practice will become clear in the forthcoming weeks and months. No doubt there will be teething problems as with all regulatory reforms, however, it is surely too early to throw the baby out with the bathwater. Que sera sera then. Regardless, it is certainly an interesting time to be an employment lawyer.

This was posted in Bdaily's Members' News section by Paul Clark .