Charles Price - Employment E-Missive No.15

Employment E-Missive No.15 - New Tribunal Procedure

---------------------------------------------------------------------------

by Charles Price, LLB.(hons) LLM, barrister
No5 Chambers,
Birmingham - Bristol - London
Telephone 0870 203 5555

www.no5.com
www.charlesprice.net
mailto:charlie@mediationsearch.fsnet.co.uk

----------------------------------------------------------------------------
1. The New Rules of Procedure
2. Mediation Way Forward for Clergy
3. Dates to Look Out For
4. PIDA - What constitutes a Detriment?
5. Solicitors Waive Fees in Name of Charity
6. Questions and Answers

----------------------------------------------------------------------------

Charles Price practices in Respondent and Applicant work in England and
Wales. This e-mail is for academic purposes only. Legal considerations must
be looked at in the light of the particular circumstances and it may be wise
to seek legal advice.

----------------------------------------------------------------------------

New Tribunal Rules of Procedure
-------------------------------

This article aims to comment on the more controversial areas of the new law and to tackle common problems, which might be encountered by the practitioner.

The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 came into force on October 1st 2004 and revoke the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 (save for the transitional arrangements provided for by Regulation 20. The Regulations are contained in the schedules.

At this late stage it is unlikely that you will find on your desk, a case where proceedings were commenced on after 1st October 2004. You may be thrown an Equal Pay claim for example (6 months) and so I include the provisional measures in this commentary. For Regulation 20 provides that the new Regulations will apply to all proceedings commenced on or after 1st October 2004.

The complicated transitional rules apply as follows:

A) When Proceedings Were Commenced and Proceedings were Sent to the Respondent Before October 1st 2004:

The new Regulations apply. The new Rules apply save for Rules 1-9 (i.e those relating to the issuing and responding to a claim including default judgement), 21-24 (those relating to conciliation) 33 (review of default judgment) and 38-48 (those relating to costs and wasted costs).

The old Regulations do not apply. The following old Rules still do apply: 1-3 (those relating to the issuing and responding to a claim save that rules 2(2)(4)(5), which deal with the entry to the register, do not apply), rule 8 (national security) and Rule 14 (costs).

B)Proceedings Were Commenced On or After 1 October 2004 and/or Proceedings were Sent to the Respondent on or After 1 October 2004

The New Regulations and Rules apply in full. The Old Regulations and Rules do not apply.

C)Proceedings Were Commenced Before 1st October and/or Proceedings were sent to the Respondent on or after 1st October 2004.

The new Regulations apply. The new Rules apply save for new Rules 1-3 (i.e those relating to presentation of a complaint) and 38-48 (ie those relating to costs and wasted costs) which do not apply.

The Old Regulations do not apply. The following old Rules continue to apply: old Rules 1-2 (but not including 2(2)(4) and (5)). These provisions relate to the presentation of a complaint and costs.

Changes in Terminology
----------------------

It is likely that you will have gathered that what seems like unecessary tweaking means that 'Applicant' has become 'Claimant', 'Originating Application' has become 'Claim Form' and 'Notice of Appearance' has become a 'Response Form'.

Miscellaneous Changes
---------------------

The Secretary of State now may prescribe the the mandatory type of forms to be used for the lodging of complaints (Regulation 14. Rule 1(3) suggests these will be in mandatory operation by April 2005). Additionally, the calculation of time limits is now formally recognised in the Regulations. Regulation 15 provides that in most cases the day on which an order is made, or the date of a hearing, is not included in the calculation of any time period. Of equal importance, it provides that the date 'sent' by the Tribunal means date when it was posted (not when service was effected).

Making a Claim
--------------

From April 6th 2005 a Claimant must bring a claim on a prescribed form. Until that time any claim must contain the, 'required information'. The required information includes;
Names and addresses of the Claimants and Respondents,
Details of the Claim,
Whether the Claim is about dismissal,
whether the Claimant has raised the matter in writing to the Respondent 28 days before the presentation of the Claim and if not why not (though these latter provisions are only necessary where the complaint relates to a dismissal which is not a constructive dismissal) (see rule 1(4)(5)).
Any breach of section 32 (Entry of any judgment or any written reasonsin relation to any judgment.
http://www.legislation.hmso.gov.uk/si/si2004/20041861.htm#sch1

The Tribunal shall not accept any claim (or any part threof) if (a) it doesn't contain all of the required information, (2) it does not have the power to consider the claim, or (3) there has been a section 32 breach (see rule 3). If the Tribunal refuses to accept a claim then the Claimant must be informed in writing as to why the claim has been rejected. If the Tribunal does not accept the Claim, then it needn't be sent to the Respondent.

Responding to a Claim
----------------------

This must be presented at the Tribunal within 28 days of the date on which the Respondent was sent a copy of the Claim. This is the date when it is stamped by the Tribunal as being sent to the Respondent (i.e the posting date and not the receipt or even deemed receipt).

Subjectto the provisions relating to default judgments a Respondent may appy within the initial 28 day period for an extension of time. An extension will only be granted where it is 'just and equitable' to do so.

The response must contain its own 'required information', though this is pretty minimal: (1) the Respondent's name and address, (2) whether the Claim is resisted in whole or in part and (3) whether the claim is resisted in whole or in part and (3) if resisting, on what grounds (see Rule 4).

Default Judgment
----------------

The Chairman has the discretion to enter default judgment where no respnse has been lodged or accepted within the time linit and of course if there is no pending application for a review of a decision not to accept a response. This may determine liability only, or alternatively liability and remedy. The decision should only relate to the information before the Chairman/woman and therefore the case should be pleaded as fully as possible by the party seeking the judgment.

Any application for a review should be made within 14 days of the default judgment being sent out by the Tribunal (rule 33). This time may be extended by the Tribunal if it considers it just and equitable to do so. Any such application must be in writing and should be fully drafted to include reasons why the default judgment should be varied or revoked and,where it is the Respondent applying it should contain: (1) the Respondent's proposed response to the claim; (2) an application for an extension of time for the presentation of the response; and, (3) an explanation of why the response was not lodged as required by the rules within the time limit, (or alternatively why no application was made earlier for an extension).

How to Vary or Revoke a Default Judgment
-----------------------------------------

The prospects of success are an important factor in considering whether a default judgment will be varied or revoked. The Chairman is, however compelled to consider whether there was a 'good reason' for the response not being received in time.

Case Management
----------------

Rule 10 affords case management powers to a Chairman who is considering the case on paper or at a hearing. The Tribunal's powers have not expanded much more than under the old Rules. The usual directions e.g ordering witness statements, giving notice of a pre-hearing review or giving leave to amend may be accompanied by a time limit and a sanction for non-compliance. These may take the shape of what civil lawyers label, 'Unless Orders'.

Rule 11 allows parties to make applications 'at any stage of the proceedings for case management orders. Any such application should be made within 10 days of a hearing although a chairman may allow short notice, 'where the interests of justice' demand. The application must be in writing and must include (if for a case management discussion/ pre-hearing review, must enclose suggested orders and why they would assist a Tribunal in dealing with the proceedings, 'efficiently and 'fairly'.

Legally represented parties must provide copies of the applications for witness orders. Further, they must inform the other parties that any objection must be lodged with the Tribunal upon the earliest of within 7 days of receiving the application or before the date of the hearing and that such objection must be copied to the Tribunal and the applicant. The party making the application must confirm that these requirements have been met. Where the party is not legally represented the Tribunal shall inform the other parties of the application (save for applications for witness orders).

Tribunal's Own Orders
---------------------

Rule 12 affords the Tribunal the power to make orders without hearing from the other parties. If the parties want to apply to vary or revoke the order they must do so explaining the grounds before any time limit ordered has expired. Again, the opposition must be notified.

Rule 14 - Hearings
-------------------

The new law does tend to add more procedural strictures to the once informal employment law. Practitioners, however should be happy with new Rule 14, which preserves some informality and halts the onslaught of law of a Byzantium complexity. Rule 14 states that a Tribunal 'shall not be bound by any enactment or rule of law relating to the admisability of evidence' and should try to avoid 'formality'. 14 days notice of any hearing save for case management discussions should be provided to the parties. written admissions for such hearings should be presented to the tribunal 7 days in advance of the hearing. The rules also provide for, case management discussions and pre-hearing reviews being conducted by electronic communications where the Tribunal considers it just and equitable to do so (Rule 15).
Another move perhaps towards making employment proceedings more like other civil cases is that under Rule 27(4) the Tribunal now can force witnesses to remain outside the Tribunal pending their evidence. As an employment advocate I have often wished that the several witnesses about to be cross-examined did not have the chance to mould their evidence around that of the witness already in the hot seat. In the name of fairness the authors of the new law can only be lauded for pinching a useful element of civil law. The Tribunal may so order where it considers it is in the interests of justice to do so (rule 27(4)).

Deposit
-------

This stands at #500 and no such order should be made unless the Chairman has taken reasonable steps to ascertain the party's ability to comply with it. The order has to be confirmed in writing which should include a note explaining that if a party against whom an order is made persists with the Claim then they may have an award of costs made against them.

If the deposit is not paid within 21 days (or a further period of not more than 14 days for any extension granted, then the Tribunal 'shall, 'strike out the claim or response of that party or...the part of it to which the order relates...' (rule 20(4)).

The Tribunal is then under a duty to consider whether making a costs order against the party on the basis that he was unreasonable in pursuing the proceedings. No such order should be made unless the Tribunal on considering the grounds for thje deposit order are of the view that the grounds therin stated were the cause of the party's defeat.

Conciliation Period
-------------------

The Tribunal now has the power to order a conciliation period. The length of the conciliation period will be determined by the nature of the proceedings. In essence the straight forward claims will have a period of 7 weeks. Other claims have a period of 13 weeks. A short conciliation period may be extended by two weeks should the parties agree, an offer for settlement is outstanding and ACAS feel like it is likely to settle.

Withdrawal of Prooceedings
--------------------------

Rule 23(3) Withdrawal of a claim in writing or orally does not affect proceedings as to costs, preparation time or wasted costs. I fthe Claimant is considering discontinuance the Respondent is strongly advised to apply for the claim to be dismissed under Rule 25(4).

Judgements and Reasons
----------------------

Written reasons for judgments will only be provided if one of the party requests either at the conclusion of the hearing when the judgment is given or if judgment is sent out in writing, then 14 days from the date when it was sent to the parties - Rule 30(5). Commentators have criticised this rule for being ambiguously drafted. On one reading it suggests that there is no obligation to provide written reasons where oral reasons have been given at the conclusion of the hearing and no request was made at the actual hearing for written reasons. Whilst on another reading it means that written reasons will be provided if the request for reasons will be provided if the request for reasons follows within 14 days from the date the wruitten confirmation of judgment is sent to the parties. As before, it is avisable for all practitioners to always request written reasons at the end of the hearing in case they wish to examine appeal possibilities.

Rule 30(6) tells us what 'written reasons' should include: (1) The relevant issues (2) any issues not determined and reasons for the same, (3) relevant findings of fact, (4) concise statement of the relevant law (5) how the facts and law have been determined to determine the issues and; (6) calculation of any compensation. The Tribunal shall provide written reasons for any costs/preparation time orders if a request is made within 14 days of the date of the costs/preparation time order.

Review
-------

The following are subject to a review:

(i) a decision not to accept a claim, response or counterclaim;
(ii) a judgment;
(iii) a default judgment (dealt with above).

Standard interlocutory orders are not subject to any review, they must be
appealed or accepted. A Tribunal may review the decision on its initiative but only when
it was the Tribunal who made the decision to be reviewed. The notice of the
proposed review to the parties must be sent out within 14 days of the decision having been made.
A decision not to accept a claim, response or counterclaim may only be reviewed on 2
grounds: (1) that the decision was wrongly made as a result of an administrative error, or
(2) the interests of justice require such a review. The other matters listed above may be
reviewed on 5 grounds: (1) that the decision was wrongly made as a result of an
administrative error; (b) that a party did not receive notice of the proceedings leading to
the decision; (c) the decision was made in the absence of a party; (d) new evidence has
become available since the conclusion of the hearing to which the decision relates,
provided that its existence could not have been reasonably known of or foreseen at that
time, or (e) the interests of justice require such a review.

Any application for a review must, be made either orally at the
hearing when the decision was made or in writing within 14 days of the date when the decision was sent to the parties (rule 35(1)). This time limit may be extended by a
Chairman if he/she considers it just and equitable to do so.
Any written application must identify the grounds enabling the review. Should the
Tribunal consider that there are no grounds for a review or that such a review holds no
reasonable prospect of success then it can reject the application without holding any
hearing.

On review a Tribunal or Chairman may confirm, vary or revoke
the decision. If the decision is revoked, then the decision must be considered afresh
Where such a decision was made at a hearing, the second decision must also follow a
hearing. Where the decision was made on paper, then the second decision may be made
on paper. Rule 37 provides for a slip rule to correct clerical or administrative mistakes of the
Tribunal.

Costs

The new rules add meat and bones to the old law on costs and have been eagerly anticipated by practitioners.

Rule 38 provides the general power for the Tribunal to make standard costs orders
against paying parties for any costs incurred by any receiving party. They also
provide the power to order a paying party to make payment to the Secretary of State for
any witness / expert / assessor expenses / fees paid out in association with the
proceedings. The general rule is subject to restrictions as set out elsewhere in the rules.
The following miscellaneous points are of note: (i) that a Respondent who has had a
response not accepted may still be ordered to pay (or receive) costs; (ii) legally
represented means having the assistance of a person (including where that person is the

receiving partys employee) who has a general legal qualification under the CLSA 1990,
an advocate in Scotland or a Solicitor or Barrister in Northern Ireland;

Timing of an Application
-------------------------------
(iii) an application for costs can be made at any stage of the proceedings but no later than 28 days from the date of the oral judgment (or 28 days from the date that the written judgment was sent to the parties) unless the Tribunal considers it in the interests of justice to do so.

Costs orders should only be made when the paying party has had PRIOR NOTICE (this will include attendance at a hearing when an oral application is made) and therefore the
opportunity to make submissions prior to the making of the order. Rule 39 preserves the position as set out in the old rule 14(5) with regards a mandatory costs order where the Applicant seeks reinstatement / re-engagement and a postponement results from the Respondents failure to adduce the evidence therein detailed.

When a Costs Order May be Made
------------------------------------------

Rule 40 lists circumstances when a costs order may be made. These are as follows:
(i) Where there is a postponement or adjournment of the hearing / pre-hearing
review;
(ii) Where a Tribunal considers that a party has in bringing the proceedings, or
he or his representative has in conducting the proceedings, acted vexatiously,
abusively, disruptively or otherwise unreasonably, or the bringing or
conducting of the proceedings by the paying party has been misconceived
then they shall consider making a costs order. A costs order may be made if
the Tribunal consider a costs order appropriate;
(iii) Where a party has not complied with an order or practice direction.
Rule 41(2) changes things by expressly providing that The tribunal or chairman may have regard to the paying partys ability to pay when considering whether it or he shall make a costs order or how much that order should be
The process for the assessment of the amount of the costs to be ordered
remains the same as under the old rules, i.e. (i) up to #10,000; (ii) in any agreed sum; or,
(iii) in any sum assessed by detailed assessment in the County Court.

Such costs orders can only be made where the receiving party has been legally
represented at the hearing (or in the absence of a final hearing, then if the receiving party
is legally represented at the time when the proceedings are finally determined) (see rule
38(2)). Where a receiving party has not been so legally represented then a preparation
time order may be ordered instead.
Preparation time orders may only be made when the receiving party has not been
legally represented at the hearing (or in the absence of a final hearing, then if the
receiving party is not legally represented at the time when the proceedings are finally
determined). In other words, it applies when the normal costs provisions do not apply.
Preparation time means time spent by the receiving party (including employees) carrying
out preparatory work directly related to the proceedings and the receiving partys legal
or other advisors relating to the conduct of the proceedings up to but not including time
spent at any hearing (rule 42(3)).
The procedure and grounds for making such an order are the same as for the costs
provisions.
The calculation of such an award is, for obvious reasons, different. In this respect the
Tribunal shall make an assessment of the number of hours spent on preparation time on
the basis of information given to him by the receiving party and the Tribunals own
assessment of what it considers to be reasonable and proportionate to spend on such
preparatory work.
Once the hours have been assessed then the Tribunal should multiply it by #25 (the
hourly rate as stated in rule 45(2)) to give the costs award. The figure may not exceed
#10,000.
The hourly rate of #25 will be increased by #1 per year on 6 April 2006 and thereafter.
A Tribunal cannot make an order for both costs and preparation time for the same party
in the same proceedings. A Tribunal can order that a party should have its costs before
the final determination and leave the consideration of which type of award is made until
after the final determination (rule 46(2)).

Wasted Costs
----------------
For the FIRST TIME wasted costs provisions have been introduced into the Tribunal system.
A Tribunal can make a wasted costs order where it considers that a partys representative
has caused another party to incur costs as a result of any improper, unreasonable or
negligent act or omission on the part of any representative or which, in the light of any
such act or omission occurring after they were incurred, the tribunal considers it
unreasonable to expect that party to pay (rule 48(3)).
Representative includes anyone who is acting for profit with regard to those proceedings
(including anyone acting on a conditional fee agreement).
Unusually a wasted costs order can be made in favour of the representatives own client
(i.e. disallowing or ordering repayment of costs incurred, or paid, by the representatives
client).
Again, the Tribunal will need to ensure that the representative concerned has a
reasonable opportunity to make oral or written representations as to reasons why such an
order should not be made and shall have regard to the representatives ability to pay
when considering whether to make when considering whether to make an order and if so in what amount.
The reasons must be provided as with costs and preparation time orders (see Reasons
above).
The powers are significant. It remains to be seen how they will be applied but there could
well be significant evidential disputes on questions of wasted costs (especially where a
Tribunal is considering disallowing or ordering repayment of costs paid) and questions
such as client privilege will also be relevant

http://www.legislation.hmso.gov.uk/si/si2004/20041861.htm

Clergy Remain 'Employed by God'
-----------------------------------

The Government will not extend full employment law coverage to the clergy. The Government does have the power under Section 23 of the Employment Relations Act 2004 to extend some or many statutory employment rights to those who are currently excluded from them in relation to the Trade Union and Labour Relations (Consolidation) Act 1992, the Employment Rights Act 1996/2004, and any instrument made under section 2(2) of the European Communities Act 1972. But it appears to be following the principles of UK case law and statute extending back to 1911 which deny the clergy employment status because they are regarded as being employed by God. Although much will hinge on the package that the church comes up with in a few months, the government could conceivably draw the church (and other religions) into dispute resolution proceedings which are normally applied to help resolve employment conflicts at an early stage

Pending Employment Law
-----------------------

Working Time Regulations

Mobile workers in the road transport industry (eg lorry drivers) - last date for implementation, March 2005

Compensation Increases

Employment Rights (Increase of Limits) Order 2004, SI 2004/2989 was made on 10th November 2004 and applies where the appropriate date falls on or after 1st February 2005. Main changes include an increase in the cap on a week's pay relevant for several tribunal awards from #270 to #280 and an increase in the maximum unfair dismissal compensatory award from #55,000 to #56,800

What Constitutes a Detriment in a PIDA Case?
--------------------------------------------

In the recent whistleblowing case, Virgo Fidelis Senior School v Boyle, (EAT, 23.1.04 (0644/03)). http://www.lawreports.co.uk/ICREmaye0.3.html http://www.charlesprice.net/emissivek.html the EAT held that the Vento guidelines apply when considering compensation payable to a whistleblower who had been subjected to detriment for making a protected disclosure. The EAT held that the Tribunal were in error in not having regard to the Vento guidelines. Further, they noted that the detriment suffered by whistle-blowers should normally be regarded by Tribunals as a 'very serious breach of discrimination legislation'. The EAT in Virgo believed that the Tribunal were in error in coming to the conclusion that they did not have the authority to make an award of aggravated damages and accordingly awarded #10,000 under this head of damages to the claimant.

The Virgo Fidelis case involved a disciplinary process, which seems to have been included as victimization in the case. I quote from the law report:

Following a disciplinary process he was dismissed by the school. An employment tribunal upheld his complaint that he had been unfairly dismissed and victimised for making a public interest disclosure, and, pursuant to section 49 of the Employment Rights Act 1996, it awarded him compensation of, inter alia, #42,500 for injury to feelings, but declined to make any award in respect of either exemplary or aggravated damage'.

In DDA cases you cannot run a victimisation claim as a stand-alone claim it must be part of a successful claim for discrimination Bruce v Addleshaw Booth and Co EAT, 11.2.04 (0404/03).. This, however only applies to disability claims as far as I can see and there is nothing to say that the process of a disciplinary hearing without good reason or especially if it was flawed may not be held as a detriment. The Tribunal in the 'Fidelis' case described the disciplinary process as: 'patently flawed' and a 'travesty' and this seems to be the principal reason for the award made.

Of course you can make a claim for injury to feelings for psychiatric injury caused by events prior to dismissal:

On 15 July the House of Lords held in the conjoined appeals of Eastwood and anor v Magnox Electric plc and McCabe v Cornwall County Council and ors that employees can bring common law claims in contract and in tort for psychiatric injury caused by events prior to dismissal. May be possible to amend. It is unlawful to victimise a worker for making a protected disclosure (ErtsA s 47B). See LONDON BOROUGH OF HARROW (appellants) v. KNIGHT [2003] IRLR 140 where an investigation leading to a stress-related illness was deemed a,'detriment' under the Act.

Solicitors Waive Fees in Name of Charity
----------------------------------------

Through Will Aid, you can get a professionally drawn up Will and instead of paying the solicitor, you can help some of the UK's best loved charities.

Thousands of solicitors throughout the UK will waive their fee to draw up a basic Will. Instead they will ask you to make a donation to the Will Aid charities.

This is a fantastic way to get your affairs in order and at the same time help many thousands of people in need around the world.

The next campaign will be in November 2006. All proceeds go to well known charities such as the Red Cross and Save the Children UK.

www.willaid.org.uk

Questions and Answers
----------------------
This area of the site calls upon your knowledge of employment law and presents practitioners with the chance to share their legal knowledge with other employment lawyers. Any legal comments made here are not to be relied upon as formal legal advice and is for academic purposes only.

1) When paying a deposit in after a pre-hearing review the address in the guidance for sending the cheque in is to 'Administration' Employment Tribunals Service London WC1H OLU. Is payment of the cheque to a local tribunal office deemed as satisfying the order?

2) Under the new Rules If the deposit is not paid within 21 days (or a further period of not more than 14 days for any extension granted, then the Tribunal 'shall, 'strike out the claim or response of that party or...the part of it to which the order relates...' (rule 20(4)). This seems to leave little scope for late delivery of the deposit monies. Under the new Rules if the payment of the deposit is late is there any way the party making the payment can escape this seemingly strict provision?

--------------------------------------------------------------------------This e-missive is distributed to 1,000 employment
solicitors in England and Wales. Please Contact me if you have any comments.
See www.charlesprice.net for other articles. To usubscribe simply reply via e-mail
---------------------------------------------------------------------------