The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (the “Regulations”) come into force from 1 October 2004. The Regulations will apply to England, Wales and Scotland. The Regulations make important practical changes to the way that Tribunal claims are made and defended.
What are the main changes?
- Changes in Terminology
- “Applicant” becomes “Claimant”;
- “Originating Application” becomes “Claim Form”;
- “Notice of Appearance” becomes “Response Form”.
- New forms
From 6 April 2005, a Claimant will have to use a formal Claim Form to commence a claim. A Respondent will have to file a defence using a formal Response Form. The Forms will require the Claimant and Respondent to give certain “required” information most of which we are used to – i.e. name, address etc.
However, in addition, the Claimant must state whether or not he has complied with the Statutory Grievance Procedure, by raising the issue in writing with his employer at least 28 days before presenting his claim. If he has not then he must explain why not.
The Claimant and Respondent will have to provide the “required information” when making or defending a claim before 5 April 2005 – but the formal forms are not required until 6 April 2005.
- Extension of Time Limits
The time limit for the Respondent to file the Response Form has changed.
Currently, the Notice of Appearance has to be filed within 21 days of receipt of notification from the Tribunal that a claim has been made.
From 1 October 2004, in relation to claims sent to the Respondent after that date, the Respondent will have 28 days from the date on which the Response Form was sent by the Tribunal.
- Case Management
The Regulations provide Tribunals with greater powers to actively manage proceedings. A tribunal may, for example, order a pre-hearing review to determine any interim or preliminary issue. Tribunals will now be able to consider oral or written representations or evidence at a pre-hearing review. The current regime is much more limited in that evidence is not ordinarily admissible.
Tribunal Chairmen are also now permitted to hold a ‘case management discussion’ to deal with matters of procedure and management of proceedings. Chairmen will be able to make a wide range of orders at such discussions, including giving leave to amend a Claim or Response or for disclosure of documents.
- New Statutory Disciplinary and Grievance Procedures
As reported in Employment Alert No. 87 these procedures also come into force on 1 October 2004. Claimants may, in certain circumstances, have six months, rather than the usual three months, to file their Claim Forms if they:
- Lodge a claim within the normal three month time limit but have not lodged a grievance with the employer in accordance with the statutory procedure; or
- Send a step 1 grievance letter to their employer during the normal three month time limit and that grievance procedure is ongoing; or
- Lodge a claim after the normal three month time limit where they reasonably believed that a disciplinary procedure was being followed in respect of the matters forming the basis of the claim.
What does this mean for employers?
- The introduction of mandatory Claim Forms may make it harder for Claimants to begin claims without legal assistance. This may result in lawyers increasingly becoming involved earlier in the litigation.
- Under the Regulations, Tribunal Chairmen will have enhanced powers to strike out misconceived or vexatious claims. This may lead to more unmeritorious claims being struck out at an earlier stage.
- As a result of the greater case management powers, Chairmen may take a more proactive stance when managing tribunal claims.