The Underhill Reforms

In the biggest shake up of employment law in a generation, former president of the EAT, Mr Justice Underhill has completed his review of the tribunal rules. Some of the key recommendations arising out of this wide ranging review comprise:

  • an early sift of weak cases to ensure employment tribunal judges consider these earlier in the process so that claims with no arguable complaint are dismissed as soon as possible
  • removing the £20,000 cap on costs awards beyond which costs awards must be referred to the county court for assessment
  • an express power to create lead cases in multiple claims
  • provision for the Presidents of the employment tribunals in England and Wales or Scotland to publish accessible, non-prescriptive ‘presidential guidance’ to give parties a better understanding of what to expect from the tribunal process.  The guidance is intended to address a perception that judges, particularly at different centres, deal with the same kinds of hearing in widely different ways
  • an express rule for the Tribunal to set timetables for oral evidence and submissions enforced by “guillotines”
  • a simpler set of rules to replace the existing Tribunal rules and regulations, in an attempt to make the rules easier to understand by parties who are without representation
  • encouraging the use of alternative dispute resolution (ADR), such as mediation, to settle claims before they get to tribunal

The Government intend to launch an eight week consultation into the proposals.

Comment

The Government’s ‘red tape challenge’ appears to have left no stone unturned. 

As part of this, Mr Justice Underhill was tasked with carrying out a fundamental review of the rules for procedure for employment tribunals. In order to ensure efficiency in the operation of the employment tribunal system, it was agreed there was a need for rules to be simplified and a framework to manage cases as promptly, economically and proportionately as possible, with more certainty for the parties.

From an employers perspective it is felt generally that not enough was being done to prevent the employment tribunal system from being taken advantage of by many claimants with unfounded claims, particularly as employers bear the cost of defending these claims: the early sift of cases should prevent many vexatious claims and claims without merit getting through to a full hearing; the combination of case management hearings and pre hearing reviews should also speed up genuine claims through the Tribunal and cut costs and the removal of the £20,000 cap on costs is further deterrent to claimants who bring speculative claims against employers without any cost to themselves.

The new proposals should also encourage early settlement through the use of ADR, which will in turn reduce the number of claims entering the employment tribunal in the first place.

Indeed, the overall aim of all of the changes, including any contribution ordered between respondents, deposit orders and awards for costs of fees of lay representatives is a cost sharing measure to push the burden of payment on to the culpable party and to reduce the operating costs of the employment tribunal as a whole.

The changes have been well received by the EEF who said in a statement that they “particularly welcome the initiative to ensure that claims with no reasonable prospect of success are identified early and dealt with in a way which minimises the expense to employers”.

Will the new proposals change tribunal procedure into a new streamlined procedure which only hears the most merit worthy of claims?  We await the outcome of the consultation.

 

 

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