The Employment Tribunals (Constitution and Rules of Procedures) Regulations 2004 are due to come into force on 1 October 2004. The legislation was finally laid before Parliament on 20 July 2004. Before they received parliamentary approval, the Department of Trade and Industry issued the final guidance notes.
The regulations implement changes to tribunal procedure set out in the Employment Act 2002, and coincide with the coming into force of the Employment Act 2002 (Dispute Resolution) Regulations 2004.
Here is a summary of some of the key changes affecting HR professionals.
Q Do the regulations change the way in which a claimant brings a tribunal claim and a respondent responds to it?
A From 6 April 2005, the prescribed claim form (ET1) and response form (ET3) must be used by the applicant (known after October as the ‘claimant’), and the respondent.
During the transitional period of 1 October 2004 to 5 April 2005, both the claim and response must include certain ‘relevant required information’. After the transitional period, this information will be provided on the forms.
Claimants must state on the ET1 whether they have raised the matter of the claim with the respondent at least 28 days before lodging it with the tribunal. A respondent must submit its ET3 response form within 28 days of the date it is sent – an increase on the current period of 21 days.
The regulations also introduce a new ‘pre-acceptance procedure’, whereby the tribunal chairman can, in certain circumstances, decide not to accept the claim/response.
Such circumstances include where either the claim or the response are not on the prescribed form (after 6 April 2005), or do not contain all the ‘relevant required information’, or the tribunal does not have power to consider the claim or, in respect of a claim only, step 1 of the Statutory Grievance Procedure (s.32 of the Employment Act 2002) has not been complied with. The chairman must inform the party in writing of the reasons for the decision.
Q How will the role of Acas change in conciliating?
A There will be a fixed conciliation period of 13 weeks in standard cases during which time Acas is under a duty to conciliate. If the parties agree, this can be extended by a further two weeks where Acas informs the tribunal that a settlement proposal has been made, and it is probable that a settlement will be reached in that further period.
For certain claims, the fixed conciliation period will be seven weeks. The hearing will not be listed for a date during the conciliation period.
At the end of the period, Acas still has power to conciliate, although it is no longer a ‘duty’. In claims for sex, race, disability, religion, belief, sexual orientation discrimination, or whistleblowing, there will be no fixed conciliation period, and Acas will have a continuing duty to conciliate.
Q What are the new rules regarding costs orders, preparation time orders and ‘wasted’ costs orders?
A Costs orders can now only be made where the receiving party is legally represented. Where the party is not legally represented, a ‘preparation time order’ can be made in that party’s favour.
The current maximum amount of either order remains at £10,000. In assessing the amount of any costs, the tribunal may have regard to the party’s ability to pay. This seems to be a consequence of the Court of Appeal’s decision in Kovacs v Queen Mary & Westfield College  ILRL 414, where it was held that a party’s ability to pay shouldn’t be taken into account.
The circumstances in which either a costs or preparation order will be made remain unchanged.
The regulations introduce a new power for tribunals to make ‘wasted costs orders’ against a party’s legal representative for costs arising from any improper, unreasonable or negligent act or omission by the representative that the tribunal considers unreasonable for the party to pay. Such an order cannot be made against a representative if they do not act in pursuit of profit.