Back in the summer of 2012, Mr Justice Underhill presented the results of his fundamental review of the Employment Tribunal procedures. Following a consultation by the Department for Business Innovation and Skills, it was announced that a new set of Rules of Procedure would come into force this year. A final version of the rules has still not been produced for public consumption; most of the recent focus seems to have been on the introduction of fees, rather than the new rules.
We were provided with a “teaser” from BIS in March: there will be new strike out powers to stop weak cases, guidance from the Employment Tribunal Presidents to ensure consistency, simplification of withdrawal/dismissal of claims, and new preliminary hearings combining Pre Hearing Reviews and Case Management Discussions, the distinction between which was always at odds with the supposedly simplified procedure applied in a tribunal.
Nonetheless, the rumour mill has persisted in suggesting introduction dates. In early April, speculation that D-Day would be 12 July 2013 was quickly put down by BIS. Then, in a press release accompanying Royal Assent to the Enterprise & Regulatory Reform Act, BIS announced that measures simplifying the procedures and costs of deciding tribunal cases” would come into force on 25 June 2013. However, BIS were again quick to point out that this did not mean the new Rules of Procedure.
According to Daniel Barnett’s well respected bulletins, BIS advised him that “It is Government’s aim, however to give users of the system as much familiarisation time for the new rules as possible”. So how much time is that likely to be? Judging by other measures introduced in recent months, familiarisation time seems to be somewhere near the bottom of the list of the Government’s priorities.
Could it be that the Government is finding that “simplifying the Rules and keeping down costs” is not as easy an exercise as might have been thought. I have suggested on this blog for several years that employment tribunal cases are no more straightforward than county court proceedings and in many instances far more complicated. Why? I believe that it is primarily because rules of procedure have to be able to stand up to judicial scrutiny and that generally requires considerable detail and precision. Incidentally, that is why I also believe that, in addition to the imminent tribunal fees, costs should also be recoverable on the basis that the loser pays the winner. That will even more effectively weed out unmeritorious claims although it is ironic that, for many county court claims, there is currently a move against “loser pays”, but I will spare you the detail of that little farrago. Oh, and while we are on the subject, if the Government wants to save a lot of money, why not (finally) merge the courts and tribunals with really significant savings to be made in office space and shared administrative staff.
It will be interesting to see whether the changes go much further than has been envisaged, taking into account Justice Minister Chris Grayling’s apparently ready acceptance of swingeing cuts to his Department.