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Mr Justice Underhill's Fundamental Review of Employment Tribunal Rules


Mr Justice Underhill, the former President of the EAT, has published his review of the Employment Tribunal Rules of Procedure and has issued a considerably shorter and simpler set of new rules. The draft Employment Tribunal Rules of Procedure (Draft ET Rules) will form the basis of a consultation to be issued later this year.

At the outset of the review process, the Government gave Mr Justice Underhill four key objectives:


(i)         Cases should be managed in a way that is proportionate to the issues involved, with the importance of saving expense considered throughout.


(ii)         Proceedings must be handled quickly and efficiently, with an emphasis on: (a) helping proceedings resolve themselves; and (b) dealing robustly with cases with little or no prospects of success, with a view to the fairness for all parties and the Employment Tribunal (ET) and its resources.


(iii)        Consideration should be given to the efficiency in listing of cases for hearing.


(iv)        The procedural rules should be simply expressed so as to be accessible to unrepresented parties and proceedings should have as much certainty as the nature of the particular case allows.


By and large, Mr Justice Underhill appears to have achieved these aims.  The key changes contained in the Draft ET Rules are as follows:


Drafting style: the Draft ET Rules are less than half the length of the existing rules. This has been achieved by using plain English and by omitting many rules dealing with administrative practice.  However, the Draft ET Rules follow the same broad structure of the existing rules and the core wording of several provisions is unchanged.


Presidential guidance: the Draft ET Rules provide for the publication of Presidential guidance.  This should allow questions which are essentially matters of good practice or procedure to be addressed flexibly and informally.  The guidance will also help parties know what is expected of them at various procedural stages and ensure greater consistency in how judges deal with the same kinds of hearing.  However, judges will ultimately retain discretion on how to deal with particular cases.


Stronger case management: (i) there will be an initial sift stage at which every case will be reviewed by an judge on the papers after the Claim and Response forms have been received with a view to: (a) considering what directions are required; and (b) striking out at an early stage Claims or Responses which have no reasonable prospect of success; and (ii) combining case management discussions and prehearing reviews into a single "preliminary hearing".


Timetabling of hearings: ETs will be allowed to set timetables for oral evidence and submissions and enforce them by guillotines where necessary.  Although some ETs already impose timetables, this rule is designed to encourage the practice more widely.


Change to withdrawals process: the withdrawals process will be streamlined so that when a claimant withdraws their claim the respondent will no longer have to apply to get the claim dismissed: in most cases this will happen automatically after withdrawal.


General jurisdiction of ET where the respondent is outside the UK: ETs will have general jurisdiction to try a claim where:


·         at least one of the Respondents resides or carries on business in England and Wales; or

·         one or more of the acts or omissions complained of took places in England and Wales; or

·         the connection with Great Britain by virtue of which the claimant is entitled to present the claim is at least partly a connection with England and Wales


Lead cases where there are common or related issues: ETs will have the power to designate a "lead case" where two or more claims give rise to common or related issues of fact or law.  In such circumstances, findings in the lead case on the common or related issues will be binding on all the other parties, unless such party obtains a direction that the decision is not binding.


Alternative dispute resolution: the Draft ET Rules encourage parties to explore alternative dispute resolution.


Default judgment: the existing regime has been replaced by a simpler and more flexible approach.


Privacy, restricted reporting and anonymity: the Draft ET Rules provide for a more flexible regime.  The aim is to allow ETs to take steps to balance the principles of open justice and freedom of expression against privacy and effective justice.


Requirement for ETs to give reasons: ETs must give reasons for all decisions on disputed issues, although the reasons can be very short.


Costs: the Draft ET rules remove the cap of £20,000 beyond which costs awards have to be referred to the County Court.  By retaining the process in the ET, the aim is to make the process simpler for beneficiaries of such awards.




BIS has said that a formal consultation on the Draft ET Rules will follow later in the year.  Further, in order to implement the Draft ET Rules, the Government will have to introduce new regulations to which the rules would be a schedule.  As there are currently in excess of 90 bills before Parliament, it may be some time yet before the new procedural regime comes into force.


Fundamental review of Employment Tribunal Rules 

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