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Employment Tribunal Rules 2013 Peter O’Donnell, Thompsons, Solicitors

Employment Tribunal Rules 2013 Peter O’Donnell, Thompsons, Solicitors. Relevant Legislation. Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 Rules in Schedule 1 Intended to be simpler – 2004 Rules had 61 Rules and 2013 has 106 Rules Came into effect on 29 July 2013

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Employment Tribunal Rules 2013 Peter O’Donnell, Thompsons, Solicitors

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  1. Employment Tribunal Rules 2013Peter O’Donnell,Thompsons, Solicitors

  2. Relevant Legislation • Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 • Rules in Schedule 1 • Intended to be simpler – 2004 Rules had 61 Rules and 2013 has 106 Rules • Came into effect on 29 July 2013 • Except new power to make practice directions under Reg 11 • In effect 1 July 2013 • If respondent receives ET1 before 29 July then 2004 Rules apply to any counter-claim

  3. Practice Directions • Renews power of the President to make practice directions • Including in relation to judicial mediation • Can include different provisions for different cases, different areas or different types of proceedings

  4. Prescribed Forms • Secretary of State has power to prescribe forms – Regulation 12 • Reg 12(2) - Prescribed forms do not need to be used where:- • Case referred by a court • Where ET is acting as appellate court • Claims under s11 ERA (statement of particulars)

  5. Overriding objective • Rule 2 – same formulation as before • Ensure parties on equal footing • Deal with case proportionately • Avoid unnecessary formality and seek flexibility • Avoid delay • Save expense • ET must give effect to objective and parties must assist in that • Rule 3 – ET to encourage use of ADR • At odds with decision to charge fee for judicial mediation

  6. Time – Rule 4 • A requirement for an act to be done by a particular day may be done at any time before midnight • Unless otherwise specified • If act requires to be done on a day other than a working day then it is done in time if done on the next working day • ie weekend, Xmas day, Good Friday etc • Day of event is not included in calculation of time • Within certain number of days of event or not less than certain number of days before/after • Rule 5 – power to extend or shorten time

  7. Non-compliance/Irregularities – Rule 6 • Failure to comply with Rules or order of ET will not of itself render proceedings void • Except order under Rule 38 or 39 – unless or deposit orders • ET can take action about non-compliance • Eg strike out, expenses etc

  8. Presenting the claim(1) • Rule 8 – Must use prescribed form and include minimum info • Claimant and respondent name & address • Online application currently has restricted format for address • Will be rejected under Rule 10 • If substantive pleading is longer than one page allowed for online application then can attach a paper apart • Presidential Direction • Claim to be presented by post, by hand or online • Rule 9 – 2 or more claimants can use same form if claims based on same set of facts • If wrong then treated as irregularity under Rule 6

  9. Presenting the claim(2) • Must include fee or remission application • Or will be rejected under Rule 11 • If fee paid is less than fee payable then claimant will be given time to pay balance before claim rejected • If remission rejected then claimant will be given time to pay • If using online application then can tick box stating making remission application • Will be taken to online remission form • Given 7 days to lodge hard copy evidence to support application

  10. Substantive Defects • Claim can be rejected under Rule 12 if • It is one that the Tribunal has no jurisdiction to hear • It is in a form that cannot sensibly be responded to or an abuse of process • Rule 13 allows for reconsideration • Grounds • Decision was wrong • Defect can be rectified • Must be made within 14 days • Include request for hearing in application

  11. Response – Rule 16 • Must be on prescribed form and include minimum information (eg name and address, whether resisting claim) • Failure to use form or provide minimum info will mean response is rejected – Rule 17 • Can include response to more than 1 claim or response from more than 1 respondent on same ET3 – Rule 16(2) & (3) • Response will be rejected if presented late – Rule 18 • 28 days • Similar provisions for reconsideration of rejection – Rule 19

  12. Response - Extension of time • Rule 20 allows for application to extend time to lodge response • Can be made before or after time limit expires • If time limit expired a copy of the response must be provided (or explanation why it cannot) • Must be copied to claimant • 7 days to object

  13. Rule 21 – No response • If no response, response rejected or employer does not contest claim • EJ can decide whether they can make determination on info available and if so make a judgment • Otherwise a hearing shall be fixed • Respondent entitled to Notice of any hearing but not to participate • Except to extent allowed by Judge

  14. Counter-Claim • Rule 23 – must be made as part of response • Can be rejected on same basis as claim • Claimant must respond within 28 days of the date ET3 sent to them

  15. Initial Consideration – Rule 26 • EJ will consider all documents to confirm that there are arguable claims and defence • Can make order for further information to be provided • Can dismiss claim/response or part of claim/response – Rule 27/28 • Must give reasons • Must give notice that dismissal will take place on certain date unless written representations made why should not be dismissed • If response being dismissed make Order as to effect • If no dismissal then can make case management orders including listing of preliminary or full hearing etc

  16. Case Management Order • Broad power in Rule 29 • Rule 30 deals with how parties make an application • Similar to current provisions • Still requirement to copy to other side – Rule 92 • Rule 31 – disclosure of document • Rule 32 – attendance to give evidence, produce documents or provide further info • Rule 34 – add, remove or substitute parties • Rule 35 – permit other persons to participate where they have legitimate interest

  17. Lead Cases – Rule 36 • New (express) power to specify one claim as a lead claim and sist others • Common or related issues of fact or law • Decision on issues on lead case is binding on other parties • Non-lead party can apply for order that decision does not bind them • 28 days

  18. Other Case Management Powers • Rule 37 – Power to strike out • Similar to power under 2004 rules • Rule 38 – Unless Orders • Rule 39 – Deposit Orders • Increase to max of £1000 • Rule 40 – non-payment of fees • If fee not paid or remission application not made then ET will send notice of date to comply • If not complied with by date then automatic dismissal of claim, counter-claim, application or judicial mediation • But not response

  19. Rules Common to All Hearings(1) • Rule 41 sets out, general, broad power for ET to regulate own procedure • Rule 42 requires any party not attending and relying on written representations to lodge those not less than 7 days before hearing • Rule 43 – any witness statement is taken as evidence in chief • Unless ET orders otherwise • Rule 45 – power for ET to impose time limits on parties in leading evidence, cross and making submissions

  20. Common Rules (2) • Rule 46 – power to conduct hearings by electronic communications • Just & equitable to do so • Rule 48 – can convert preliminary hearing to full hearing and vice versa • No material prejudice to parties • Rule 50 – privacy & restrictions on disclosure • Broader power than before • Interests of justice or the protect Convention rights • Must give full weight to principle of open justice and freedom of expression • Party or person with legitimate interest can made representations for order to be revoked or discharged

  21. Withdrawal & Dismissal • Automatic dismissal of withdrawn claims under Rule 52 unless:- • Claimant must express wish to reserve right at time of withdrawal and ET consider it is legitimate to do so • Not in interests of justice

  22. Preliminary hearings • Replace CMDs and PHRs • Rules 53-56 • ET has same powers as had at PHR • Case management • Deposit, striking out etc • Preliminary issue • Judge alone • Unless considering preliminary issue and party makes written request – Judge considers it desirable

  23. Judgements • Rule 62 – ET must give reasons on any disputed issue • Rule 64 – provision for consent order/judgments • Rule 65 – Judgment takes effect on day given • Rule 66 – 14 days to comply with judgment or order for payment of money • Unless different date specified • Rule 69 – correction of clerical errors or slips

  24. Reconsideration • Replaces Reviews • Rules 70-73 • Only single ground for application • Interests of justice • 14 days to apply from date written decision sent to parties • Procedure set out in Rule 72

  25. Costs & Preparation Time Orders • Rules 74-84 • Very similar to 2004 rules • Increase of sum that can be ordered without assessment to £20,000 • Power to order reimbursement of fees • Rule 75(1)(b) – test in Rule 76(4)

  26. Miscellaneous • Rules 85 -91 – Delivery of Documents • Expressly allows for delivery by electronic means • Rule 99 – transfer of proceedings between Scotland and England

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