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
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
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
 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
 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
Substantive Defects
 Claim can be rejected under Rule 12 if
 It is one that the Tribunal has no jurisdiction to
 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
 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) &
 Response will be rejected if presented late – Rule 18
 28 days
 Similar provisions for reconsideration of rejection – Rule
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
 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
 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
 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
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
Common Rules (2)
 Rule 46 – power to conduct hearings by electronic
 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
 Rule 62 – ET must give reasons on any
disputed issue
 Rule 64 – provision for consent
 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
 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)
 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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