In the second of my blogs on the new Employment Tribunal rules, I am covering case management in the new world. Many of the rules of old remain unchanged just rewritten in a more simple plain english approach. One example of this is in the change by removing the old Rule 11(4) about copying the other side into applications and stating if they wish to object they must do so within seven days sending a copy of the objection to you and the other side. This is now replaced with a simpler rule that each party must copy to each other their correspondence with the tribunal unless it is about witness attendance. The party must state that they have copied in the other party and any objections should be sent to the Tribunal as soon as possible. For those who used Rule 11(4) in practice this is simpler and further makes it clearer to all paries that other correspondence with the tribunal should be copied to the other party.
Case managemnent discussions and pre-hearing reviews wil be combined in a preliminary hearing so there is no longer two types of case management hearings. At these new preliminary hearings, the Tribunal will deal with strike outs, deposit orders, orders for case management, explore settlement and any jurisdictional issues. This may result in a focussing of minds, as the representative will need to be fully prepared to consider these issues at an earlier stage. This may increase costs though at an earlier stage but in the long run will save time and thus costs by narrowing the issues earlier in my view. A notice will be sent before the preliminary hearing to the parties specifying the issues that will be dealt with at the hearing, which may save time.
There is also the possibility that the preliminary hearing could be converted to a full hearing where the parties are not materially prejudiced although this is unlikely to be widely used in my view as there will be cries of protest.
The impression given by the new rules is that Judges will be more proactive in striking out claims and responses. Once the claim and the response have been lodged with the Tribunal, a Judge will assess the case as to whether there are arguable complaints or defences within the Tribunal’s jurisdiction. Rules 27-28 set out the procedure that the Judge must follow including the possibility of a hearing to identify buried claims. There are new rules as to when a claim will be struck out or rejected when it is first presented and a process in which the Claimant can apply for a reconsideration.
Time limits for complying with a rule or decision can be extended or shortened by the Tribunal ands this even extends to responses where the time limit has expired. The default judgments provisions have been removed but nevertheless it would be a
negligent brave representative who is relaxed with the deadline in any event.
As to how this will all work in practice only time will tell.