12 January 2005
On 1 October 2004 the new Employment Tribunal Rules of Procedure came into force.
The new rules are intended to modernise and streamline practices, providing "better service and swifter justice for all". However, the new rules are much more detailed – the 23 old rules have been replaced with 63 new ones.
The main changes are:
New terminology
Applicants are now known as Claimants, the Originating Application is a claim form and the Notice of Appearance has become a response form.
Submitting a claim or defence
The new rules require the tribunal to review all claim forms and response forms received, to ensure that they comply with the new rules. The rules list information that must be provided on the claim form or response form – if this information is not provided, the claim will not be accepted. This information includes whether the statutory dismissal or grievance procedures have been completed – and if not, why not.
New forms have been produced (and are available at www.employmenttribunals.gov.uk) and any claim or response not submitting on these forms after 6 April 2005 will not be accepted by the tribunal.
However, it is recommended that these forms are used before this date, as they clearly identify the information that individuals and employers must provide for their claim or response to be identified.
Time limits
The time limit for Claimants to submit a claim have not changed, although these may now be extended if the statutory dismissal or grievance procedures are ongoing.
Respondents have been given more time to prepare and file a response form – the old rules allowed for 21 days from receipt of the Originating Application from the tribunal, whereas the new rules state that the response form must be filed within 28 days from the date it is sent by the tribunal. This provides more certainty, and the date by which the response must be filed will be specified by the tribunal in its letter to the employer.
However, this means the tribunals are stricter about awarding extensions of time to file a response, and in cases where no response is filed and no extension of time grated within the time limit, the tribunal will make a judgment in the Applicant’s favour (including on compensation) without a hearing.
Conciliation
The new rules set out fixed periods of conciliation, during which ACAS have a duty to conciliate between parties and attempt to help them reach settlement. The full hearing of a matter will not take place during these periods.
The fixed conciliation periods are:
- Seven weeks for breach of contract, unlawful deductions, time off, redundancy payment and protective award cases.
- No fixed period for discrimination, whistleblowing and equal pay cases – ACAS will have an ongoing duty to conciliate.
- 13 weeks for all other cases.
These provisions are intended to encourage early settlement and to discourage parties from settling at the last minute when substantial costs have been incurred. However, directions for exchange of documents and witness statements continue to be made and apply during the conciliation period, so costs will still be incurred.
After the conciliation period has ended, it is our understanding that ACAS will not conciliate further, except in exceptional circumstances.
Costs
The rules introduced two new ways for parties to obtain costs.
Under the old rules, if a party is not represented they are unable to recover costs. Under the new rules preparation time costs will be permitted to take into account time that the individual spent preparing or taking advice about his/her case. Additionally, parties will be able to obtain wasted costs against representatives (rather than the parties) if the representative has acted improperly, unreasonably or negligently.