Regulations
are now in force which enable tribunals to resolve cases quickly and weed out
spurious claims
More work earlier – that is the message to employers from the changes to employment
tribunal procedures that came into force on 16 July. Tribunals will expect
parties to meet tight deadlines for preparing cases and will penalise parties
who default, even deciding the case against them.
This means tribunals now have the powers to weed out nuisance claims.
Employers can only hope tribunals will use them.
The wide range of sometimes complex employment rights, coupled with a
greater public awareness and high awards, has led to tribunal claims being a
natural step for aggrieved staff. In extreme cases, the tribunal is seen as a
cash opportunity – irrespective of its merits, every claim has a nuisance
value. The employer’s lot was not a happy one.
The result of lobbying by employers’ groups was the new Employment Tribunals
(Constitution and Rules of Procedure) Regulations 2001. These became law on 16
July and introduce important changes to improve the tribunal system. There are
two main aims to the new changes – to deter unwarranted claims and to help
tribunals manage cases to a swift conclusion.
Together with a new overriding objective the regulations have introduced a
number of new powers. The most significant deal with case management, deposit
payments, striking out and costs.
The overriding objective is designed to enable tribunals deal with cases
justly, quickly and cheaply in a way that is proportionate to the complexity of
their issues but, interestingly, not their value. The parties are also required
to further the objective, which may be significant as it will give tribunal chairmen
greater discretion to penalise a person whose conduct abuses the tribunal
process.
Under its case management powers the tribunal has greater ability to order
disclosure of documents and require a party to provide information on the
detail of its case. If a person does not comply with an order, a tribunal can
either penalise them by making an order for costs or strike out all or part of
the claim.
Tribunals have a new extended power to strike out the proceedings at any
stage. This will enable them to strike out part or all of a claim that is
"misconceived", such as cases that have no reasonable prospect of
success. As a result, "have a go" litigants will find it harder to
pursue a claim.
An effective way of deterring claims is to increase the financial risk to a
losing party. Previously, tribunal rules were weak in this area. This may
change. The amount of a deposit payable to continue a claim rises to £500;
costs can be awarded where a claim is misconceived and have risen from £500 to
£10,000.
The changes encourage employers and employees to avoid litigation through
early settlement. This means getting all the facts and issues on the table as
soon as possible. More management time and cost will be spent from the outset
interviewing witnesses and organising documents. And if this does not happen,
all or part of a claim or defence may be struck out. The days of delaying
preparation to cut costs are numbered.
To what extent the changes will stop spurious claims will depend on the
willingness of tribunal chairmen to award costs, strike out and order deposits.
Employers may take comfort from a recent EAT decision which awarded costs to an
employer as the appeal was "of no merit and should never have been
brought".
Although the volume of nuisance claims may be reduced by the changes to the
tribunal rules, they will not stop them altogether. The real benefit of the
changes is that they should allow the tribunal more time to focus on the real
issues before them.
Key points
– Interview witnesses and prepare documents early
– Meet tribunal deadlines. If not, you could lose the case
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– Watch out for nuisance claims. Tribunals may be prepared to strike them
out.
By Patrick Brodie, an associate in the employment department at Wragge
&Co
