UK: The New Employment Tribunal Rules Of Procedure

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)

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

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.

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 4 and 16. The general power to give directions is now contained in Rule 4(1), and is as follows:

Rule 4(3) is in part new. It reads as follows (with the part new to the Rules underlined):

The old Rules, too, contained (at Rule 4(3)) a power of the Tribunal to require a party to provide a written answer. The new provision is shortened and simplified. As before, however, the answer to such a question is one of the matters that a Tribunal is required (now by Rule 11(3)) to consider before disposing of the case in the absence of that party.

Rule 4(4) provides that a Tribunal may appoint the time at or within which and at the place at which any act required in pursuance of the Rule is to be done. One important change made in the body of the Statutory Instrument is in Regulation 2(9) which reads:

In many cases, the time for doing an act is prescribed by the Rules themselves. In those cases, and in cases where the Tribunal orders an act to be done and does not express the date for compliance as a calendar date, Regulation 2(6) provides that the date is to be calculated in accordance with Regulation 2(7) to (10).These provisions now contain some worked examples of the application of the rules for calculation.

Rule 4(5) deals with both witness orders and disclosure and inspection of documents.

A Tribunal may, on the application of a party or of its own motion, require the attendance of any person in Great Britain, including a party, either to give evidence or to produce documents or both and may appoint the time and place at which the person is to attend and, if so required, produce any document.

The power to require anyone, including a party, to attend and give evidence, is a peculiarity of Tribunal procedure. Clapson -v- Btitish Airways Plc 2001 IRLR 184 was a case concerning the similarly worded provision in the old rules (which gave the Tribunal power to require the attendance of any person, including a party, "as a witness"). It was a complaint of unfair dismissal in which the Applicant's Counsel said that she intended to call the Applicant, and conducted the cross-examination of the Respondent's witnesses on that basis, then said that she would not be calling him. Counsel for the Respondent successfully applied for an order that the Applicant be called by the Tribunal itself; of course, if the Respondent had called him, its Counsel would not have been permitted to cross-examine him. The EAT dismissed the appeal from the Tribunal's order. However, it remarked that Tribunals should be very cautious about calling a witness whom neither party wishes to call. "That word of caution should be applied even more carefully in a case where the witness is one of the parties to the case. The circumstances when it would be right to compel a party to give evidence against that party's volition must be very rare indeed."

The new Rules, like the old, say nothing at all about the procedure to be followed as regards expert witnesses. It is therefore worth noting at this point that in De Keyser -v- Wilson (2001 IRLR 324) the EAT (while emphasising that "we must not be thought to be encouraging the use of expert witnesses; their instruction might be thought by some to militate against the inexpensive, speedy and robustly "commonsensical" determinations...which Employment Tribunals were called into existence to provide") has given some helpful guidance as to the terms which should be included in an order by a Tribunal for expert evidence.

Rule 4(5) provides that a Tribunal may, again on the application of a party or of its own motion, require one party to grant to another such disclosure or inspection (including the taking of copies) of documents as might be granted by a Court under Rule 31 of the Civil Procedure Rules 1998 [14].

One question that often arises in connection with Tribunal proceedings is whether the party having the bulk of the documents (almost always the Respondent) is obliged to provide the other party without charge with copies of them. Part 31.15 (c) of the CPR provides that a party entitled to inspect a document may request a copy of it "and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request." It is submitted that Tribunals should follow the same procedure, and only require one party to provide copies to the other on an undertaking to pay the copying costs.

Rule 4(8) deals with the consequences of non-compliance with a direction of the Tribunal. It provides that in such a case a Tribunal may make an order for costs (under Rule 14(1)(a)) or, before or at the hearing, strike out the whole or part of the Originating Application or Notice of Appearance and, if appropriate, direct that a Respondent be debarred from defending altogether.

The only change to the procedure for pre-hearing reviews is that, by Rule 7(4), the limit on the amount of the deposit that may be ordered by a Tribunal is increased from £150 to £500.

An important change is that, for the first time, the Tribunal is (by Rule 14(1)) to be under an express duty, in an appropriate case, to consider whether to make a costs order.

By Rule 14(1), the Tribunal shall consider this question and, if it so decides, may make a costs order:

The reference to a costs order as a sanction for unreasonable behaviour by the representative of a party is new. It may, perhaps, be used by Tribunal Chairmen to impose some discipline on unqualified and unregulated employment advisers. It is unclear, however, how far it in fact marks a departure from previous practice. Harmony Healthcare plc -v- Drewery IDS 668 was a case on the power to strike out under the old Rules where the manner in which proceedings had been conducted by or on behalf of a party had been scandalous frivolous or vexatious. The Respondent was represented by an employment consultant who used force to grab back witness statements from the representative of the Applicant, injuring her slightly in the process. The Tribunal struck out the Notice of Appearance, after giving the Respondent's representative an opportunity to show cause to the contrary, and the EAT upheld the decision. While it accepted that the Respondent had not authorised the representative to act in a scandalous manner, it held that he had nevertheless acted on its behalf. There was an analogy with incompetent advocacy: no party wished or intended its advocate to present its case badly, yet a party could not rely on the advocate's incompetence to enable it to take a new point on appeal.

The test for a costs order has changed, in that the old term "frivolously" has been dropped, and instead there is now a reference to "misconceived" proceedings. It should be noted that the term "misconceived" is defined in the body of the statutory instrument in Regulation 2(2), which provides that "misconceived" includes having no reasonable prospect of success.

As before, if a Tribunal decides to make an order for costs it may do so in one of three ways:-

1. By ordering a party to pay to another party a specified sum. By Rule 14(3)(a), the maximum amount for such a sum has been increased from £500 to £10,000.
2. By ordering the payment of a sum agreed between the parties.
3. By ordering the payment of the whole or a specified part of the costs incurred by a party to be assessed by way of detailed assessment (any such assessment to be carried out by the County Court).

Rule 15(2)(c) gives the Tribunal a power, at any stage of the proceedings (provided that notice has been given to the relevant party) to strike out or amend any Originating Application or Notice of Appearance on the grounds that it is scandalous, misconceived or vexatious. (Note again in this context that the term "misconceived" is defined to include having no prospects of success). This reverses the effect of Care First Partnership -v- Roffey 2001 IRLR 85, a case on the old Rules, in which the Court of Appeal held that the absence of such an express power meant that the Tribunal had no jurisdiction to strike out on the grounds that the Application had no reasonable prospects of success. The DTI has suggested that the new power marks a significant protection for employers from unmeritorious claims. However, it should be noted that in De Keyser -v- Wilson (2001 IRLR 324) the EAT (in reversing a decision to strike out a Notice of Appearance under the old Rules) emphasised that a Tribunal should not use the power to strike out to penalise misconduct where, despite that misconduct, it is still possible for there to be a fair trial.

Rule 15(2)(d) gives the Tribunal a further power at any stage of the proceedings (again, provided that notice has been given to the relevant party) to strike out any Originating Application or Notice of Appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of the Applicant or Respondent has been scandalous, unreasonable or vexatious. Once again, (reflecting the CPR) the old term "frivolous" has been dropped, this time in favour of "unreasonable."

It often happens that identical or closely similar applications are filed on behalf of a number of members of a class of Applicants. Under the old Rules, it was technically necessary for there to be a separate Originating Application on behalf of each, and a separate Notice of Appearance to each such Application. In practice, it has become common in such cases for Tribunals to accept a single Application on behalf of a number of Applicants, and then to permit the Respondent to file a single Notice of Appearance. This practice is now expressly permitted under Rules 1(2) and 3(2) respectively.

The old Rules contained (in Schedule 1, Rule 3(3)) a provision that a Notice of Appearance presented out of time that set out the reasons for its being late should be deemed to include an application for an extension of time for the presentation of it. The old Rule 3(4) went on to deal with costs orders in such cases. These provisions are not reproduced in the new Rules; it follows that if a practitioner is filing a Notice of Appearance which will (or may) be out of time, he must when filing it make an express application under the new Rule 17(1) for an extension of time.

As before, the Rules contain (now in Rule 15(1)) a statement that, subject to the provisions of the Rules, a Tribunal may regulate its own procedure.

The new Rules will affect almost every Tribunal case, including those already in progress and those about to come on for hearing, and every employment lawyer should find the time at this point for a careful reading of them.

1 Amended, as to the Commencement Date only, by the ET (C and R of P)(Amendement) Regualtions 2001

2 A more detailed treatment of this subject, with a helpful review of the case law on costs applications under the existing Rules, is in an article by Martin and Tickner at p. 120 in ELA Briefing for June 2001.