Section 151 of the Small Business, Enterprise and Employment Act 2015 made provision for limiting the number of postponements a party may apply for in an Employment Tribunal and requiring a Tribunal to consider making an order for costs against any party who makes a late application to postpone or adjourn a hearing. Last week, the Department for Business, Innovation and Skills published its response to its consultation on amendments to employment tribunal postponement procedures to facilitate the implementation of Section 151.
1. Limit the number of postponements that can be granted to a party, in a single case, other than in exceptional circumstances.
The Government considers that a limit of two postponements per party per case strikes a sensible balance between recognising that some postponements are necessary, whilst discouraging the view that repeated postponements are acceptable.
2. Introduce a deadline after which applications for the postponement of a hearing would only be allowed in exceptional circumstances
The Government believes that introducing a deadline by which postponement applications are to be made would benefit Tribunal users by reducing costs, stress and time wasted. Employment Tribunal judges will still be able to exercise their discretion when they apply the new rules and will be able to grant a postponement if there are exceptional circumstances. The reasons for the postponement will be taken into account by the deciding judge.
3. Place an obligation on Employment Tribunals to consider granting costs orders where late notice postponements are granted
They will introduce an obligation on Tribunals to consider a costs or preparation time order where a successful postponement application is requested less than seven days before the hearing. Judges will also be obliged to take account of the circumstances that led to the application in the first place. Those with a justifiable cause will not be issued with a costs order.
The Government believes that there are some circumstances that should always be accepted as a reason for a postponement to be granted (i.e. where it is to facilitate a settlement between the parties). These will be exempt from consideration under the new rules.
This is a positive development given that late applications for adjournment are most typically made by Claimants or badly prepared representatives leaving Respondents picking up the cost of preparing the case in a timely fashion. Indeed, this is illustrated by the fact that in the two years up to 31st March 2013 Claimants were accounted for around 80% of postponement applications made.
Those with disabilities or long-term health issues may have an increased likelihood of requiring a last minute postponement. The Government has indicated that the revised rules will make special provisions for circumstances where a last minute postponement is requested for reasons of ill health related to an existing long term health condition or disability.
The Government also acknowledges that those with disabilities or long-term health issues are more likely to incur additional costs due to last minute postponements and a costs order may provide a remedy where the respondent is responsible for the adjournment.
Whether two postponements per party per case strikes a sensible balance remains to be seen. Indeed, introducing a provision that explicitly allows for adjournments may only serve to increase the number made. An impact assessment in 2017 or 2018 would be welcomed and if the number of postponements has not fallen by then, further revisions may be warranted.
For advice defending claims at the Employment Tribunal, please contact a member of the Devonshires Employment Team.