The Employment Tribunal, but not as we know it...

Employment Tribunal practice and procedure has been the subject of much recent debate and speculation.  We have summarised the changes and proposed changes.

Employment Tribunal Fees

The Ministry of Justice has published its results from the consultation on introducing fees in Employment Tribunals, which are intended to be implemented in the second half of 2013.  The previous rationale of introducing fees in order to reduce the number of weak claims as a help to businesses, has apparently been abandoned in favour of generally lowering the cost of the Employment Tribunal system to the tax payer.  However, with a fee remission scheme being proposed to ensure access to justice for those who wish to bring a claim but cannot afford to pay the fees, it is questionable how much the tax payer (or, indeed, businesses, under the previous rationale) will benefit when the majority of claims will arise as a result of the loss of employment, which thereby reduces the prospective Claimant’s ability to pay the requisite fees. 

The fee structure relating to single claims appears below (multiple claims have a different fee structure).  You can see that there are two levels of claim. Level 1 Claims are the most straight forward claims such as unlawful deductions from wages; and Level 2 Claims comprise pretty much everything else.  There will also be two stages at which the fees become payable, upon issue, and in readiness for the hearing.

Fee typeLevel 1 ClaimsLevel 2 Claims
Issue fee£160£250
Hearing fee£230£950


Other fees, in relation to different Applications, will also be introduced:

 Level 1Level 2
Review Default Judgement£100£100
Application to dismiss following settlement£60£60
Mediation by the judiciary-£600
Application for review£100£350


Employment Tribunal Rules

Mr Justice Underhill, former President of the Employment Appeal Tribunal, has carried out a fundamental review of the Employment Tribunal Rules and has outlined a number of proposals in a bid to make the rules simpler and more accessible to unrepresented parties. 

If Mr Justice Underhill‘s proposals are accepted then this would make wide ranging reforms to the Employment Tribunal system including:

  • Requiring an early paper sift of weak cases to ensure that Employment Judges consider these earlier in the process and dismiss claims with no arguable complaint or response.
  • Combining separate Case Management Discussions and Pre-Hearing Reviews into Preliminary Hearings.
  • Explicitly requiring Tribunals to give reasons for all decisions on disputed issues, (although recognising that these can be very short in appropriate cases).
  • Removing the £20,000 cap beyond which cost awards must be referred to the County Court for assessment.
  • Changing the withdrawals process so that when one party ends the dispute the other party does not have to signal its intention to end the claim via an application to the Tribunal.
  • Providing for Presidents of the Employment Tribunals in England & Wales or Scotland to publish accessible, non-prescriptive Presidential Guidance to give parties a better idea of what to expect from the Tribunal process in order to address the perception that Judges, particularly at different Centres, deal with the same kinds of hearing in widely different ways.

It will be interesting to see if these proposals are implemented in the near future and whether the Tribunal system runs more efficiently and consistently as a result.

Protected Conversations

The much heralded Enterprise and Regulatory Reform Bill has been amended to include a new section to cover ‘Protected Conversations’ that will be inserted into a new section 111A of the Employment Rights Act 1996. 

Protected conversations will allow employers to make an offer of a termination package without fear of the offer being raised in a subsequent tribunal claim. Such conversations differ from “without prejudice” discussions which require the existence of a dispute in order to be effective.  However, the remit of protected conversations appears to be quite narrow.

Firstly, they will only be applicable in relation to subsequent unfair dismissal claims, and not “other proceedings” such as discrimination, breach of contract or automatically unfair situations, including for example whistleblowing claims.  In fact, it would appear that if an employee brings a discrimination claim at the same time as an unfair dismissal claim, then the protected conversation can be taken into account in not only the discrimination claim, but also the unfair dismissal claim brought alongside it.

Secondly, they will not apply where the behaviour of the Employer is seen to have been “improper”.  There is no definition of “improper”, of course, so there will doubtless be great debate over what is considered to be “improper” conduct in the course of having a ‘protected conversation’, which will naturally require the Tribunal to consider the content of the so called confidential protected conversation itself! 

It will be interesting to see how ‘protected conversations’ are used in practice.  One potential issue in relation to constructive dismissal claims can be illustrated using the following scenario:

An Employer invites an Employee into a meeting to have a ‘protected conversation’ during which it is explained that the Employer is unhappy with the Employee’s performance and would like them to leave with a sum of money. The Employee resigns as a result of that conversation, stating that this was breaching their trust and confidence and claims constructive dismissal. Arguably, they could not rely on the ‘protected conversation’ as this would be covered as a form of ‘unfair dismissal’. However, a constructive dismissal claim is founded upon there having been a fundamental breach of contract by the Employer and if a breach of contract is “other proceedings” and so not covered by the ‘protected conversations’ scheme, the Employee may be able to evidence the ‘protected conversation’ in their Employment Tribunal claim.

Is this just another case of the Government trying to simplify something but in doing so creating further doubt and uncertainty?  We will all await the outcome with baited breath. However, in the meantime, should you wish to remind yourself of the rules regarding “without prejudice” conversations and review our “top tips” for conducting the same, please see our previous article regarding this.


Thrings Solicitors