The New Employment Tribunal Rules Of Procedure

Article First Published In "ELA Briefing" July 2001

The Rules of Procedure for Employment Tribunals are contained in a Statutory Instrument. The present one dates from 1993. On 16 July 2001, a new one comes into force. Its title is the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 1. It makes many changes, some of which will be of great importance and will affect most Tribunal cases. In this note I deal only with the changes to the old Rules which will be of general importance, and ignore some which will affect only specialised cases, such as those relating to national security or raising issues of Welsh devolution.

As before, the body of the Statutory Instrument (which consists of "Regulations") is short, and much of the meat is to be found in the Schedules (which consist of "Rules"), and in particular Schedule 1. Schedule 1 now contains the Rules which will apply in most ordinary Tribunal cases, while the remaining Schedules contain the Rules for the following specialised types of cases:

National Security Cases - Schedule 2

Equal Value Claims - Schedule 3

(Schedules 2 and 3 consist of modifications, for the purpose of the relevant specialised type of case, to the Rules in Schedule 1).

Training Levy Appeals - Schedule 4

Health and Safety Improvement and Prohibition Notices - Schedule 5

Non-discrimination Notices and Appeals against Notices issued by the Disability Rights Commission - Schedule 6

In this note, for brevity, Rules in Schedule 1 are referred to as "Rule 1" etc. The new Rules will apply to all cases, including those commenced before 16 July. (The transitional provision to this effect is Regulation 14)

Overriding Objective

The most fundamental change is the insertion by Regulation 10 of an overriding objective. Regulation 10 is as follows:

10(1)The overriding objective of the Rules in Schedules 1, 2, 3, 4, 5 and 6 is to enable Tribunals to deal with cases justly.

10(2)Dealing with a case justly includes, so far as practicable -

ensuring that the parties are on an equal footing;

saving expense;

dealing with the case in ways which are proportionate to the complexity of the issues; and

ensuring that it is dealt with expeditiously and fairly.

10(3)The Tribunal shall seek to give effect to the overriding objective when it -

exercises any power given to it by the Rules in Schedules 1, 2, 3, 4, 5 and 6; or

interprets any Rule in Schedules 1, 2, 3, 4, 5 and 6.

10(4)The parties shall assist the Tribunal to further to overriding objective.

Rules 10(1) and 10(3) are close paraphrases of Part1.1(1) and 1.3 respectively in the Civil Procedure Rules. Rule 10(2) is a much looser paraphrase of Part1.1(2) of the CPR. In particular, though it mentions the complexity of the issues, it omits any reference to the amount of money involved, the importance of the case and the financial position of the parties. This is presumably intended to reflect the informal and accessible character of proceedings in the Tribunal. The imposition for the first time of an express duty on the parties to assist the Tribunal in the task of case-management is likely to be of particular importance, provided that Chairmen grasp the nettle and effectively penalise non-compliance with directions.

Specific Case-Management Powers

Under the old Rules, the case-management powers of Tribunals were split between Rule 4 and Rule 16 of Schedule 1, and some important powers were not conferred expressly, and had to be based on the general power of the Tribunal to give directions on any matter arising in connection with the proceedings. The powers are now set out in Rule 4, which aims to consolidate and simplify the old Rules...