New rules for employment tribunals are a curate’s egg

The draft Employment Tribunal Regulations come into force on 6 October to
assist in the early resolution of claims. But will they really work in

The inevitable by-products of the new regime of statutory grievance and
disciplinary procedures, under the Employment Act 2002 and recommendations of
the Employment Tribunal System Taskforce, are the new rules of procedure
governing employment tribunal claims.

The DTI has now published draft rules to replace the existing regime and
invites comments on its draft Employment Tribunal (Constitution and Rules of
Procedure) Regulations 2004. These will come into force on 6 October, and the
key reforms are:

– The rules of procedure are to be recast so that they follow a more logical
structure and are expressed in ‘plain English’. This will be complemented by
the introduction of standard claim and response forms that will seek fuller
information ‘up-front’ to assist the parties and the tribunal to understand

– The circumstances in which a respondent may gain an extension of time for
submitting a response form are to be more tightly specified

– There will be a new pre-acceptance procedure to sift out claims and
responses that should not go forward (for one or more of a number of specified

– The arbitration and conciliation service Acas’s duty to conciliate will be
limited to a fixed period in most cases to encourage early settlement

– Where a case is uncontested, the tribunal will issue a default judgment
against the respondent without holding a hearing

– The employment tribunal presence will have the power to issue practice
directions to ensure there is a consistent approach to procedural issues

– Explicit provision is to be made for cases to be struck out at a
pre-hearing review, but only on the current grounds for tribunals to strike out
claims or responses outside such a review

– Two substantial changes are to be made to the present costs rule. A new
provision will allow parties to apply for awards in respect of preparation time
in some circumstances, and it will be possible for representatives (except
profit representatives) to incur a costs award on account of their own conduct.

Streamlining the tribunal system and encouraging more cases to be resolved
before the hearing date is consistent with the aims of the Woolf Report on the
reforms of the Civil Justice system in general.

But, like the curate’s egg, the regulations are partly good and partly bad.
It remains to be seen, for example, whether the introduction of fixed
conciliation under the regulations following the 2002 Act will really influence
parties’ behaviour so that they prioritise conciliation at the outset,
resulting in earlier resolutions of claims.

Acas is construing its duty under the regulations quite strictly. It will
only agree to conciliate outside a fixed period in highly exceptional
circumstances (see Public Consultation Paper – Employment Act Proposals on
Limiting Conciliation: 5
December 2003).

It is debatable whether fixed conciliation will succeed in concentrating the
parties’ minds and encourage early settlements, or whether flexibility, with
conciliation available at all times, would more successfully achieve the
desired result. It could be argued that a more fundamental approach than that
prescribed by the 2002 Act is required.

Is it too much to hope that a new mediation scheme (piloted now for small
firms in Yorkshire, the Humber region and in East London) could revive interest
in mediation as a viable method of resolving employment disputes? The
experience in New Zealand, where a successful mediation system has worked for
some years, suggests our efforts would be more fruitfully diverted along those

By John McMullen, National head of employment law, Pinsents

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