In November last year, the Government asked Mr Justice Underhill, the outgoing President of the Employment Appeal Tribunal, to lead a fundamental review of Employment Tribunal rules. The aim was to streamline the Tribunal process, improve understanding and cut costs. Mr Justice Underhill's review, together with the draft rules, have now been published today.
The highlights are:
1) Cases will be sifted on the papers by an Employment Judge to consider directions and consider strike-out of parts of a claim lacking a reasonable prospect of success. Whilst on the face of it, this may have the effect of streamlining the process and cutting costs, this will depend on how robust the Employment Judge considering the papers is prepared to be. A weak Employment Judge is less likely to intervene and suggest that a case is lacking a reasonable prospect of success.
2) Case Management Discussions (CMDs) and Pre-Hearing Reviews (PHRs) will be combined and relabelled 'Preliminary Hearings'. Currently, certain applications, for example, to strike out of all or part of a claim can only be made at a PHR. Therefore time and costs are wasted when a Tribunal lists a CMD simply to hear a request to list a PHR to deal with applications that cannot be determined at the CMD.
3) Employment Judges will have an express power to limit oral evidence and submissions. Provided judges utilise this power, this is likely to reduce the number of hearings that end up going part heard. However, it may need to be exercised with caution as unrepresented Claimants struggling to get to grips with the law and present their evidence could attempt to appeal a Tribunal decision on the basis that they have not been given sufficient opportunity to present their case.
4) Removing the £20,000 cap on the Tribunal's ability to assess costs. This will avoid the need to refer costs to the County Court for assessment. However, bearing in mind no other changes have been mooted in respect of cost and that, in 2010/2011, the average costs award was £2,830, lifting the cap will probably have little impact...
A formal consultation on the review will follow later this year, so it remains to be seen whether the proposals will improve the Tribunal process over the long-term.