One of the outcomes of last year’s Resolving Workplace Disputes consultation was a consensus that the current Employment Tribunal Rules of Procedure needed revision. The Government therefore requested Mr Justice Underhill, the former president of the Employment Appeal Tribunal, to carry out a review and make recommendations aimed at streamlining and improving understanding of the process whilst at the same time making cost savings.



In July, Mr Justice Underhill presented his findings and produced new draft rules for consideration.



The recommendations include:

• establishing robust case management by introducing an initial sift stage at which every case is reviewed by an Employment Judge so that weak claims that have no real prospect of success are struck out at an early stage;
• removing the distinction between case management discussions and pre-hearing reviews. Instead, ‘preliminary hearings’ may decide matters of case management or substantive preliminary issues;
• changing the withdrawals process so that if one party ends the dispute, the other does not have to signal their intention to end the claim. At the moment, when a claimant decides that they no longer wish to pursue a case against their employer, the case is not closed until the employer has made an official application to do so;
• introducing an express rule setting timetables for oral evidence and submissions, and to enforce them by ‘guillotines’ where necessary; and
• the publication of new ‘presidential guidance’ on matters of practice in order to give all parties in a dispute a much better idea of what to expect from the Tribunal process and what is expected of them. This will help parties consider alternative methods of resolving their dispute, such as independent mediation. In addition, the guidance will seek to ensure that Employment Judges across the Tribunals Service are managing cases in a consistent manner, providing clarity to all parties. The guidance is not intended to be prescriptive as, ultimately, judges must have discretion to deal with the individual case before them. Nor is it intended to provide uniformity of practice between England and Wales on the one hand and Scotland on the other.

The Government has launched a public consultation on the substance of the recommendations and on wider issues, such as encouraging better compliance with Employment Tribunal orders for awards. The consultation closes on 23 November 2012.