Unless - Equality and Human Rights Commission
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Transcript Unless - Equality and Human Rights Commission
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
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
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 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
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 participate
Except 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
mediation
But 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