Making sense of recent developments in employment law

Dialogue iStock 000009191235XSmall 146X219Susan Belgrave analyses some of the most important recent changes in employment law.

Seismic changes in the employment tribunal landscape have been coming thick and fast and employment lawyers are now hoping for a period of stability to see how the system is actually working. This article takes a look at some of the more important of these changes: protected conversations, introduction of fees, pre-conciliation, initial sift and changes to case management

Protected conversations

On the face of it the new provisions encouraging employees and employers to recognise when it may be appropriate to have a clean break of the employment relationship may be superficially very attractive. Officially called ‘pre-termination negotiations’ this new concept bears deceptive similarity to ‘without prejudice’ discussions. The crucial distinction is that in the latter cases it will be reasonably clear that there is a dispute between them either because of some procedure triggered by the employer eg disciplinary hearings resulting in dismissal or redundancy. In the case of protected discussions the employer will purport to terminate the relationship without necessarily going through any of these procedures.

Where such a discussion takes place it cannot ordinarily be relied upon in a tribunal by a claimant except in cases of automatically unfair dismissal, discrimination and where the employer has acted unfairly:

  1. where there is a claim relating to an automatically unfair reason such as whistleblowing, union membership or asserting a statutory right;
  2. where there is a claim concerning discrimination, harassment, victimisation or any other behaviour prohibited by the Equalities Act 2010;
  3. where there are claims relating to breach of contract or wrongful dismissal;
  4. where there has been improper behaviour on the part of the employer.

If there is improper behaviour then anything said or done in the context of the pre-termination discussions could be used in evidence. It will be for the tribunal to determine whether behaviour is improper in the circumstances of any case, but Acas has provided some non-exhaustive examples:

  • “Unambiguous impropriety” under the “without prejudice” principle, e.g. fraud, perjury or blackmail perpetrated by the employer;
  • All forms of harassment, bullying and intimidation.
  • Physical assault or the threat thereof.
  • Discrimination because of any of the protected characteristics under the Equality Act 2010;
  • Undue influence applied on the employee, e.g. an employer informing the employee that they will be sacked if they do not accept the settlement proposal, or rushing the employee’s consideration of the proposal.

Whether the line has been crossed so that a ‘protected conversation’ no longer becomes protected is a matter which will subsequently be determined at a tribunal according to the arguments/claims made by the claimant and the evidence adduced to support it. In such circumstances it may be difficult to use such conversations to get rid of ‘problem’ employees who are perhaps more likely to raise such allegations or indeed be subject to such treatment.

Fees regime, new procedure and tribunal sift

The Enterprise and Regulatory Reform Act 1013 inserted new sections 18A and 18 B in the Employment Tribunal Act 1996 which, from April 2014, will require claimants to contact ACAS in initiate pre-claim conciliation before they can issue a claim to the employment tribunal. If this attempt at conciliation is unsuccessful then the ACAS conciliation officer will issue a certificate confirming that conciliation has been attempted and the claimant will then be allowed to issue a claim.

As from 29 July 2013, a claimant has to present a completed claim form using the prescribed form and a tribunal can reject a claim if it is not made on the prescribed form or does not contain certain prescribed information.

A claim form can be submitted via the online submission portal; by post to the relevant Central Office or by hand to a designated Employment Tribunal office: rule 85(2).

Under the new rule 10 a claim form will be rejected if it is not accompanied by the appropriate fee or application for remission of fee; if information is missing; if the tribunal has no jurisdiction to hear the claim or it amounts to an abuse of process. The notice of rejection must set out the reasons why the form has been rejected and how an application for it to be reconsidered can be made. Substantive defects in the form, explained in rule 12 as situations where it is believed the tribunal has no jurisdiction to hear the claim; where it cannot sensibly be responded to or is otherwise an abuse of process must be referred to an employment judge. The tribunal staff will deal with the more administrative problems themselves: rule 11.

A claimant can apply under rule 10 or 12 for a reconsideration of the decision to reject their claim form. This can be done either because the decision was wrong or because they have been able to correct the defect which they had been notified about. They will need to make their application in writing and explain the basis on which they are asking for a reconsideration. Such an application must be made within 14 days of the date when the notice of rejection was sent and they should make it clear in the application whether they wish a hearing of their application otherwise the reconsideration will simply be made on the basis of the documentation available to the tribunal service. If there is a hearing the respondent will not need to attend.

Where a claimant has not paid the correct fee when submitting the claim form then the rules provide that the claim form must be re-submitted. This could obviously cause problems if the time limit for submitting the claim has expired. It may be possible to ask for a reconsideration or alternatively the claimant may have to appeal that decision.

The Response

A new ET3 form has also been issued and respondents are required to complete this with prescribed information or risk having their defence rejected by the tribunal. A failure to send in a defence or sending in an incomplete response could mean that a judgment in default will be issued in favour of the claimant. Rules 15 to 22 govern the contents of the ET 3 and process by which it will be accepted by the tribunal. They spell out the minimum information needed: the respondent’s name and address and whether they are resisting all or only part of the claim. There are parallel provisions allowing a respondent to apply for a reconsideration of the decision to reject the ET 3 and, again, the party may request an oral hearing of their application. The respondent can also apply for an extension of time in which to submit a response. Where the 28 days for submission have already passed then the respondent needs to provide a draft of their defence.

Initial consideration of the Claim Form and Response

The new rules introduce, for the first time, a judicial sift similar to that which has operated for many years in the Employment Appeal Tribunal. An employment judge shall, as soon as possible, consider all of the documents held by the tribunal in relation to the claim to confirm whether there are arguable complaints and defences which should be allowed to proceed to a full hearing: rules 26 to 28. At this stage the judge has the power to dismiss all or part of a claim or defence and must write to the parties explaining the basis on which that decision has been reached and give them the opportunity to make representations as to why the claim (or defence) should not be struck out in whole or in part. The effect of this is that parties will need to be more detailed and rigorous in the presentation of their claims/defences at this very early stage. The rules do not set a time frame in which this initial consideration is to take place. If no written representations are received the relevant claim or defence will be dismissed and the parties notified accordingly. Where representations are received then the judge can allow the matter to proceed or convene a preliminary hearing to determine whether it should be allowed to proceed.

New employment tribunal rules

Following a review by Underhill LJ new simplified rules of procedure have been introduced with effect from 29 July 2013 to ensure that tribunal procedure is easier for parties to understand and ensure that justice is administered more effectively. Of note is the statement of the overriding objective in employment tribunals:

The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—

(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of

the issues;

(c) avoiding unnecessary formality and seeking flexibility in the proceedings;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense.

A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.

These rules recognise that the tribunal system is used by litigants in person who are not always familiar with the way lawyers and the legal system work and can sometimes be wary of co-operating with the other party in preparing a case for hearing. The additions to the rules therefore state that the tribunal shall avoid unnecessary formality and seek to be flexible in handling proceedings and that parties and their representative shall co-operate generally with each other and with the tribunal.

In addition, rule 3 of the rules of procedure now clearly provides that a tribunal shall "wherever practicable and appropriate encourage the use by the parties of the services of ACAS, judicial or other mediation, or other means of resolving their disputes by agreement".

Case management orders and preliminary hearings

A tribunal may at any stage of the proceedings make a case management order either on application by the parties or of its own motion: rules 29 to 40. These powers range from the relatively straightforward orders for disclosure of documents and additional information to witness orders; adding or removing parties from proceedings.

The powers to strike out a claim, order a deposit or make an unless order remain. Rule 37 provides for a claim to be struck out on the same grounds as previously. Rule 38 provides for unless orders where a party’s non-compliance with tribunal’s orders can be penalised i.e unless a particular order is complied with the party’s claim or defence will be struck out without further order.

Preliminary hearings

The law reverts to the situation before the introduction of the 2004 rules which created the distinction between pre-hearing reviews and case management discussions. Both types of hearing will be subsumed under the umbrella concept of a preliminary hearing. It is hoped that this will save time and costs as there will be no need for separate hearings to determine specific issues such as whether a claim should be struck out or not. A preliminary hearing will normally be conducted by an employment judge sitting alone. It is possible for a party to the proceedings to apply, or for the employment judge to consider whether it would be desirable for the preliminary hearing to be converted to a full hearing, rules 48 and 55:

A Tribunal conducting a preliminary hearing may order that it be treated as a final hearing or vice versa, if the Tribunal is properly constituted for the purpose and if it is satisfied that neither party shall be materially prejudiced by the change.

Preliminary hearings shall be conducted by an Employment Judge alone, except that where notice has been given that any preliminary issues are to be, or may be decided at the hearing a party may request in writing that the hearing be conducted by a full tribunal in which case an Employment Judge shall decide whether that would be desirable.

This is an entirely new provision and the test for whether a hearing should be converted to a full hearing is simply to ensure that one party or other is not ‘materially prejudiced.’ This power may be engaged, presumably, where the factual issues between the parties are narrow and the preliminary legal issues raised would be largely determinative of the merits of the claim. In some cases there would be a substantial saving of time and costs if there were simply one hearing rather than two. Parties must be given 14 days’ notice of a preliminary hearing.

Only time will tell whether these rules reduce the number of unmeritorious claims before the tribunal, streamline case management and improve the litigation process for parties. It is doubtful that the introduction of fees will eliminate unmeritorious claims but will almost certainly deter many with perfectly legitimate claims. Overall these changes, like the curate’s egg, are probably good in parts.

Susan L Belgrave is a barrister at 9 Gough Square. She can be contacted on 020 7832 0500 or by This email address is being protected from spambots. You need JavaScript enabled to view it..