UK: Employment tribunals - recommendations for revised tribunal rules

Following a review requested by the Government, Mr Justice Underhill has published his recommended reforms to the employment tribunal rules.

The recommended new draft rules are shorter and simpler.  One of the key changes is for there to be a new sift stage, at which an employment judge would review the claim on the basis of the ET1 and ET3 to assess whether there is an arguable complaint and defence within the tribunal's jurisdiction and either make case management directions or strike out a party's case for having no reasonable prospect of success (subject to a request for a hearing to contest this).

New ET1 and ET3 forms have also been proposed and drafts will be available shortly.  Respondents will be able to apply for an extension of time after the original deadline for the ET3 has expired.   There will be provision for the Presidents of the tribunals to issue guidance on matters or practice to assist users and hopefully improve consistency of tribunal approach.

Other changes are summarised in Mr Justice Underhill's letter.  They include a change to the provisions on the jurisdiction of the tribunal to rectify the strained construction of the old rules in Pervez.

The report also makes recommendations outside the scope of the tribunal rules.  These include giving tribunals the power to apportion compensation between two or more respondents where both are found jointly and severally liable for an act of discrimination (given that the EAT in Brennan recently ruled that tribunals currently do not have that power).

BIS is currently considering the recommendations and intends to consult on changes later in 2012.