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Employment Law Legal E-Bulletin

The former President of the Employment Appeals Tribunal, Mr Justice Underhill has completed his fundamental review of employment tribunal rules. 

Mr Justice Underhill proposes a set of new rules in replacement of the current existing Tribunal Rules and Regulations.  Given that the existing Rules are lengthy and can be complicated, the new  rules use more simple language and are shorter in a bid to make the Rules easier and more understandable for those parties unrepresented.  It is confirmed that a formal consultation on the proposals will follow in the latter part of the year.

The new rules, if approved would make the following changes:

  • combining separate case management discussions and pre-hearing reviews into ‘preliminary hearings
  • requiring the tribunals to give reasons for all decisions on disputed decisions
  • ensure that judges consider the documentation of weak cases earlier in the claim process and dismiss those claims with no arguable complaint or response
  • removing the £20,000 cap where costs awards must be referred to the County Court for assessment
  • the creation of an express power to provide for lead cases in multiple claims
  • enabling set timetables for oral evidence and submissions
  • changes to the withdrawals process so that when settlement is reached, the parties do
    not have to signal their intention to end the claim by way of application to the employment tribunal
  • new accessible, non-prescriptive presidential guidance is to be provided by the Presidents of employment tribunals to give the parties to a claim a better idea of what to expect from the tribunal process. This guidance will also ensure that judges at different tribunal centres deal with the similar hearings in similar ways
When Mr Justice Underhill reviewed the existing Rules, he saw no reason for changing the existing substantive criteria for the award of costs, wasted costs or the making of deposit orders.  In addition he saw no case for changing provisions relating to national security.

In addition to the above recommended changes, Mr Justice Underhill has also recommended some changes to primary legislation.  These would:

  • amend Section 9 (2)(a)of the Employment Tribunals Act 1996, which only allows a deposit order to be made in respect of a set of proceedings as a whole, so that a deposit order may be made in respect of one particular issue in proceedings
  • amend Section 13 of the Employment Tribunals Act 1996, to enable the rules to provide for the award of costs which include the charges or expenses of lay representatives
The Government's formal consultation on the proposals will follow later on in the year.

As soon as we have any further details on Mr Justice Underhill's recommendations, we will update you further.

If you have any questions regarding the recommended changes then please do not hesitate to contact Sally Morris at mfg Solicitors. Email

Bulletin courtesy of mfg Solicitors

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