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Thursday, 19 July 2012 05:49

Underhill Jís Employment Tribunal reforms; in a little more detail

Written by  David Renton
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Underhill J has published both his proposed new Employment Tribunal rules, and his letter to the Ministry explaining their rationale. The documents were published on Wednesday last week, and have been well summarised by other employment law blogs, which have spotted the key proposals Ė a pre-hearing "sift" where Judges will be able to take action if it appears that a claim or a defence is weak; the merger of the present PHRs and CMDs into a single preliminary hearing with the power to strike out claims; removing the £20,000 cap on the amount that a Judge can order a party to pay by way of costs.

Here is my own list of the second-order proposals which I also found interesting

  • There will be new ET1 and ET3 forms (so far unpublished)
  • Style: Underhill's team have taken real care to make the rules comprehensible. They are much clearer and easier to read, and to that extent are just better rules
  • Presidential guidance: although almost none of this is published yet, Underhill wants to be remembered for what might be termed "intermediate" guidance, which will not be binding (unlike rules) but illustrative, especially for unrepresented parties who want some sort of advance idea of how their case will be judged
  • ADR: as in all new civil codes for the past two decades, the parties are encouraged to mediate rather than litigate. There doesn't appear to have been any real thought on how this is supposed to interact with the Coalition's penal proposals to compel parties to spend time in the care of ACAS (without ACAS having the time or resources to do anything useful with their cases)
  • In the letter to the Minister, Underhill says (in effect) that he resisted pressure from the Coalition to look for changes that would increase the number of cost orders (although the removal of the £20K cap will no doubt increase the amount of costs orders, when orders are made)
  • Underhill dodged the question of whether / how to give powers to legal officers
  • And, a surprising one this, Underhill has suggested that primary legislation should be drafted enabling costs orders to be made where a party is represented by non-lawyers (this could in theory be a route back into Tribunal litigation for trade unions, whose officials could get their time paid, if the claim succeeded).

As for the rules themselves, here they are.

Last modified on Thursday, 26 July 2012 23:53
David Renton

David Renton

Barrister 
Garden Court Chambers 

Website: www.gardencourtchambers.co.uk/barristers/david_renton.cfm E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
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