Employment Tribunal Rules 2013

Peter O’Donnell,Thompsons, Solicitors

Relevant LegislationEmployment Tribunals (Constitution & Rules

of Procedure) Regulations 2013 Rules in Schedule 1 Intended to be simpler – 2004 Rules had 61 Rules

and 2013 has 106 RulesCame into effect on 29 July 2013

Except new power to make practice directions under Reg 11In effect 1 July 2013

If respondent receives ET1 before 29 July then 2004 Rules apply to any counter-claim

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

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)

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

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

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

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

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

Substantive DefectsClaim 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 wrongDefect can be rectified

Must be made within 14 daysInclude request for hearing in application

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

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

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 participateExcept to extent allowed by Judge

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

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

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

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

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 mediationBut not response

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

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

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

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

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

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

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)

Miscellaneous Rules 85 -91 – Delivery of Documents

Expressly allows for delivery by electronic means

Rule 99 – transfer of proceedings between Scotland and England