New Employment Tribunal Rules of Procedure

The new Employment Tribunal Rules of Procedure (‘the Rules’) are due to be implemented in April 2013.  The government asked Mr Justice Underhill to carry out a review of the existing Employment Tribunal Rules of Procedure following the Resolving Workplace Dispute consultation.  Mr Justice Underhill duly carried out a review and made a number of recommendations, including new draft Rules.  A BIS (‘Business Innovation and Skills’) consultation took place in the autumn of 2012 considering the recommendations and the new draft Rules.  We are still awaiting the government’s response to the consultation.  

The key aims of the review were:

  • Proportionality
  • Speed and efficiency
  • Simplicity
  • Certainty and consistency

The following amendments were contained in the consultation paper entitled ‘Employment Tribunal Rules: Review by Mr Justice Underhill’:

  • Revised ET1 and ET3 forms have been suggested.  There are no significant amendments to the previous forms, apart from that there is now a “tick box” option for Respondents to bring counter claims in respect of alleged breaches of contract by Claimants. 
  • An initial “sift stage” where the papers will be reviewed by an employment judge once the claim form and response have been received has also been proposed.  The employment judge will make directions and will decide whether strike out would be appropriate.
  • A tribunal may strike out at any stage of the proceedings all or part of any claim or response on the grounds that:
  • It is scandalous or vexatious or has no reasonable grounds of success.
  • The manner in which the proceedings have been conducted by or on behalf of the claimant or respondent has been scandalous, unreasonable or vexatious.
  • A party has not complied with any of the rules or with an order of the tribunal (including a deposit order).

Although this is not a new concept, the increased emphasis on ‘at any stage in the proceedings’ may lead to more instances of strike out. 

  • A new concept of preliminary hearings has been suggested combining case management and prehearing reviews.  The aim being to avoid unnecessary technical complications or delay.
  • Oral evidence can be timetabled and ‘guillotines’ in respect of witness evidence used when considered appropriate by the judge. 
  • More flexibility for judges to balance freedom of expression and privacy and effective justice when issuing a restricted reporting order. 
  • There would be no change to the substantive criteria on costs.  However at present if costs are over £20k then a referral is made to the County Court for a detailed assessment.  This will change in the future and tribunal judges will be able to deal with the assessment. 
  • A change to the withdrawal process has been proposed so that when a party withdraws its claim, the other party does not have to apply to get the claim dismissed in order to bring certainty or finality to the matter. 
  • A new procedure under which any decision of the tribunal can be "reconsidered", either on the tribunal's own initiative or on the application of a party has also been suggested. 

We will update you immediately once the government response is published. 


This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.