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Employment Tribunal changes - 1 October 2004
1 October 2004 heralds the dawn of a new era in dispute resolution in the workplace. The Government is committed to focusing individuals and employers alike on resolving workplace disputes where they originated - in the workplace. You can read the Department of Trade and Industry's press release about 1 October 2004 here: Press release - 1 October 2004.
The primary legislation is The Employment Act 2002 - most of us recall the family friendly provisions of that Act taking place in April 2003. The dispute resolution element took effect 1 October 2004, supported by The Employment Act 2002 (Dispute Resolution) Regulations 2004; which deal in more detail with the new statutory disciplinary, dismissal and grievance procedures.
On the same date, ACAS's newly revised and republished supporting "Code of Practice: Disciplinary and Grievance Procedures" came into play. Further, again effective on the same date, the right of accompaniment (amongst other measures) was extended as set out in the relevant provisions of the newly enacted Employment Relations Act 2004. Click here to take you to our "news" page for further details.
But if resolving a dispute in the workplace fails, the individual still has recourse to the Employment Tribunal to hear the complaint. Inevitably this has meant that the Employment Tribunal Rules of Procedure have changed to reflect the other elements of the Government's package of dispute resolution measures.
The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, also effective 1 October 2004, implement the employment tribunal reform provisions of the Employment Act 2002. And, although as a result the Tribunal rules have jumped in number from a mere 23 to a massive 61; the intention is that these rules will enable the Employment Tribunal system run more smoothly, as well as dovetailing with the other elements of the dispute resolution legislation.
Our intention is to set out a very basic summary of the main changes - in plain language (to the best of our ability). However, any reader should not construe this as legal or professional advice - this is a short article only and as such is not definitive. For further information, in fact the legislation, we refer you instead by way of this link (hover your cursor) to: "The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004" and also to your legal and/or professional advisers.
We do not want to describe the additional 38 rules. We think it would be more helpful to briefly set out in the main how the new rules will affect the making and defending of a claim from 1 October onwards:
1) New terminology - "applicants" become "claimants"; "originating claim" becomes "claim form"; "notice of appearance" becomes "response form".
2) Pre - acceptance procedures - a new sifting process to filter out inadmissible claims; where, for instance, the claimant has not followed the (normally) required grievance procedure, the claim is not set out in the prescribed manner and/or without the required information, or where the Tribunal does not have jurisdiction to hear the claim.
3) Pre - acceptance procedures for responses to a claim - although the timeframe for responding to a claim increases from 21 days to 28, the clock starts to run from the date that the Tribunal send out notification of the claim as opposed to receipt of the claim. Responses that are not lodged, or lodged in an inadmissible format and/or without the required information, or lodged out of time; will result in a default judgement. This means that, without a hearing, an Employment Tribunal Chairman can make a judgement (on liability or liability and remedy) on the claim.
4) ACAS conciliation - Instead of ACAS officers conciliating up to the "steps of the courtroom", this will now only potentially happen in inherently complex cases such as discrimination claims. Other claims will be assigned a fixed time period for conciliation, depending on the type of claim and complexity; "short conciliation" of 7 weeks or "standard conciliation" of 13 weeks. The time period commences from when the Tribunal office notify the respondent of the claim.
5) Changes to Employment Tribunal hearings - an enhanced approach to case management arrangements will mean that the new "Case Management Discussion" will (if deemed appropriate) ensure the smooth running of a case, dealing with matters of procedure and management; thereby hopefully saving time and cost. "Pre-hearing Reviews" replace preliminary hearings; and at these the tribunal chairman (or in certain circumstances) chairman + lay members are able to determine substantial issues of fact, and make judgements or rulings that may result in proceedings being struck out or dismissed without the need for a full hearing. In terms of the full or "Merits Hearing" the only change is that the tribunal may exclude witnesses from a hearing until they give evidence.
6) Employment Tribunal reasons - from 1 October, written reasons for any oral decision will only be provided on request at the hearing or within 14 days of the date on which the judgement was sent to the parties. Representatives are taking note of this, particularly in regard to any contemplated appeal to the Employment Appeal Tribunal (whose own rules have been amended, but which are outside the scope of this article).
7) Costs - Costs orders continue, however there is a new provision for "preparation time" awards against unrepresented parties; together with "wasted costs" orders - against a party's representative.
8) Public Register - judgements only now recorded, which will have the effect of (a) details not appearing if settlement is reached before judgement, and (b) "ambulance chasers" now thankfully unable to gain details of all claims lodged .... which will hopefully mean that parties are no longer bombarded with "helpful" offers of assistance following a tribunal claim.
As a result of these measures, we think it worth re-emphasising that (a) it will become increasingly unlikely that respondents will face a claim "out of the blue" - normally a claim will not be admissible unless the grievance procedure has been followed first; and (b) the probable diminishing or cessation of the common practice of additional causes of action being added to claims in the run up to and at the hearing itself - we understand that new complaints will not result in an amendment to the Claim Form (not compliant with s.36) and therefore would result in a 28 day wait/adjournment of hearing.
The new ET1 (Claim Form), replacing the IT1 and ET3 (Response Form), replacing the IT3 are not mandatory until 6 April 2005. However, effectively most parties will be using the forms (available on-line at the Employment Tribunals' website) www.employmenttribunals.gov.uk from 1 October - the information required is mandatory even if the forms are not, yet.
Finally - (and we suppose this comment is mostly for lay as opposed to legal representatives), don't forget to review and amend your compromise agreement precedents to reflect the new dispute resolution legislation; together with amendments as a result of the statutory instruments that have extended the category of people validly able to give advice in this respect (in England and Wales) which now include Fellows of the Institute of Legal Executives employed by a solicitors practice.
We will continue to update this page as the new rules become established. Any feedback, queries or comments are welcome.
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