The Underhill Report and Tribunal Rules of Procedure
Allan Roberts, Guildhall Chambers
What does it mean and what should we expect?
It is apparent the Rules of Procedure are set for an overhaul, with a draft replacement being proposed by a working committee chaired by Underhill J. Even a quick visit to the accompanying report elucidates the central aims of simplicity, certainty and efficiency. With the number of claims accepted each year surpassing the 200,000 mark - and by some margin - it is not surprising to see an emphasis on the latter. This naturally will have in mind the aim of reducing Tribunal expenditure and indeed the cost to the parties. In the main the amendments are a matter of emphasis, but one would be wise not to confuse this with the absence of any real change. The Government has supported the review, and it is expected that a formal consultation on the draft new rules will take place later this year. Any rule changes would then be made in regulations following the conclusion of the consultation, and would therefore be unlikely to surface before 2013. This article considers some of the central proposals and offers an opinion on how they may affect litigation if (or more likely, when) they are introduced.
Perhaps the most fundamental change is the initial consideration of a claim form and response or "the sift", (draft rr.22-25). This creates a mandatory process for a Judge to consider both pleadings. The main purpose is to consider whether there is an arguable claim or defence. If the Tribunal considers otherwise, it must write to the party whose pleadings are found wanting. The Judge will set out their view and indicate that if no request for a hearing is made the claim or response will be dismissed without any further order. Should that party request a hearing, one must be held, though the other side need not attend. Those familiar with the appeal process will be aware of the similarities adopted by the Employment Appeal Tribunal (EAT). Of course, as an appeal only lies from an error of law, it is arguably easier to separate the wheat from the chaff. So can the process translate to the Tribunal when many claims rely on questions of fact?
One must first observe the Tribunal already has the power to carry out a similar process. Indeed some will have experienced Tribunals listing claims for a strike out or deposit order as a matter of course and without any application from the parties. It cannot have escaped the working party's attention this will create additional workload. One must therefore conclude this evinces an intention to be more robust when considering striking out pleadings. Whether this will have the desired effect will depend on how it is deployed by the Judges. Nevertheless, despite the more informal outlook of the Tribunal, parties would be well advised to adopt a drafting style similar to the more careful practice used in the Civil Courts. This will limit either the risk of strike out or the costs of an additional hearing (which will undoubtedly be irrecoverable).
Of almost equal importance is a shift in the nature and conduct of hearings. This includes the restructure of preliminary hearings, uniformity of approach across Tribunals and proactive management of trials.
The new rules will see the disappearance of case management discussions and pre-hearing reviews, replaced instead by preliminary hearings. The Tribunal will have the power to make any case management order or determine any issue which "will not necessarily determine liability". The draft gives the example of determining if someone was dismissed. As liability is only determined if the Tribunal reach a conclusion in one direction, this would not be a final hearing. This does give rise to a particular structural difference. At present, an application to strike out on a factual issue is unlikely to succeed. However, as the draft rules specifically permit evidence to be used at a preliminary hearing (rr.39 and 49) one would expect greater use of this to deal with claims more swiftly. Parties would be wise to give consideration to tactical opportunities. A useful example can be found in a claim of unfair dismissal, the unfairness principally being discrimination. If the allegation of discrimination arises from a discrete factual issue (perhaps a single conversation) that matter could be tried at a preliminary hearing. For successful claimants they may strengthen their bargaining position going forward or conversely wish to avoid such a hearing for the opposite reason. For respondents they may secure early resolution of a claim, avoiding analysis of other aspects of the dismissal procedure where the strength of their case is perhaps weaker. This may also provide a useful tool in dealing with tricky issues of disclosure, which at an early stage will likely be limited to the preliminary issue. In either case, careful consideration will be required to assess the cost benefits of a discrete trial.
In considering case management generally, the working party was particularly alive to the view some Tribunal users may not know what to expect. It was acknowledged (though not necessarily accepted) this may in part be caused by variations in how Tribunals conduct cases. Draft r.7 therefore creates a process for guidance to be published by the Presidents of the Tribunal as to matters of practice. Whilst a Tribunal will not be bound by the guidance, it will be compelled to give it due regard. One particular example proposed in the draft is that of evidence in chief. Those whose practice covers a wide geographical area will know there is a particular divergence on whether statements should be read out or taken as read. Indeed, even lawyers are at odds on what is best. Recent trends have seen a greater use of statements being read by the Tribunal in advance. That trend is now to become normalised in accordance with draft r.49, though a Tribunal may take a different approach. This, it is envisaged, will reduce overall trial length. It will however, be important to ensure witness statements are complete and in particular include references to page numbers within the trial bundle. As preparation is seldom conducted in an ideal world, this is occasionally overlooked. However, with statements being read in advance, one cannot rely on Tribunals identifying the correct document and more importantly understanding it in the context of the witness evidence.
What is perhaps of greater importance is the intended use of "guillotines" in the examination of witness, namely the process of restricting the time to question witnesses (r.5). This appears to be the most likely tool adopted to reduce trial length. Whilst Underhill J acknowledged the Tribunal already have this power, the new rules are intended to provide greater certainty and in the case of guillotines it is designed to "encourage their use". Moreover, we are told judicial training in the new rules will emphasise the need for more robust case management. One should not therefore expect to find much favour in the appellate courts should a Tribunal limit cross-examination. This will require particular skill in the presentation and challenging of evidence. Proactivity is again the best tool. A carefully drafted timetable or batting order is likely to find greater favour with the Tribunal than requesting more time during the trial. One would however, be wise to draft with care. Whilst this can provide a degree of leeway it may also serve as a straightjacket!
Before leaving case management, it is worth briefly noting that the current requirement for applications to be made 10 days before the hearing will likely be removed. Instead, a party may make an application at a hearing or anytime in writing (draft r.32) with the parties being given "reasonable notice" by the Tribunal of the date and the issues to be determined (draft r.40). This creates a far more dynamic approach and no doubt signals a move towards more efficient and directive case management. Indeed it will be at the Judge's discretion whether a party has had sufficient time to respond. This will likely require parties to be on their toes. A party can perhaps ameliorate this by taking a proactive lead in the litigation of a case. No doubt the working party are hoping for this very approach. A respondent for example, may wish to propose case management directions and issues to be determined when filing their response.
One move likely to divide opinion is a modified approach to costs. The primary test will remain the same (namely for conduct which is vexatious, abusive, disruptive or unreasonable), though claims which have "no reasonable prospects of success" receive a specific mention. Notably no such specific mention is given to responses. However, there are three key changes which are worth considering. First is the removal of rule 40(1) granting a general discretion to award costs where an adjournment has been ordered. One must now rely on the primary test, which of course requires culpability on the paying party. In practice this is arguably a change of limited difference. Secondly, and no doubt more profound, there will be an obligation on Tribunals to consider awarding costs of its own volition where it considers the test is met (draft r.70(1)). It is noteworthy, that in his report Underhill J highlights the Minister's concern that not enough costs orders were being made. Moreover, the Minister appeared to suggest the "small number" was unlikely reflective of the number of cases which met the test. If accurate the correct approach would indeed be to preserve the test but focus on encouraging greater utility of the provisions. In dealing with the concerns Underhill J highlighted that the reason for the number of orders was unclear. In particular, he observed it is unlikely due to a lack of awareness but in any event will continue to be a focus in training exercises for Judges and members. This new requirement would therefore appear to indicate an encouragement to identify a greater number of cases as meeting the primary test. Whether this will lead to more costs orders will be keenly observed. In the meantime it will be worth advising clients that the costs exception whilst retained should not be relied upon with the same degree of comfort. The final change worth noting is the proposed removal of the limit up to which a Tribunal can order costs, presently £20,000. It was considered by the working party that Tribunals are equipped to deal with such matters. The cap is not removed in its entirety, but rather remains a threshold for summary assessment. Should the Tribunal consider an award over this limit, it shall be the subject of a detailed assessment either by the County Court or by an Employment Tribunal applying the same principles.
One change worth considering - more to demonstrate the flexibility of Tribunal Procedure - is the amendment to the rules on privacy. Under the current r.49 the Tribunal has power to delete "identifying matter" from the register, judgment, document or record which is available to the public. This however, relates only to cases involving allegations of sexual misconduct. Moreover, it does not prohibit others from revealing any such details. The current r.50 however, provides for a restricted reporting order (RRO) preventing certain persons from being identified. This however, relates only to cases involving allegations of sexual misconduct or disability discrimination cases involving evidence of a personal nature. Most importantly, as drafted the rules provide for the order to endure only until liability and remedy are determined (r.50(7)(b)).
However, one should always have in mind r.60 which allows Tribunals and Judge's to "regulate its or his own procedure". In the recent case of F v G  ICR 246 the Tribunal made orders dealing with the anonymity of the respondent, its students and staff. This case involved residential disabled students receiving "assisted masturbation" namely the fitting and removing of aids. This was carried out by volunteers, who would then clean the students. As a matter of policy no member of staff would be involved in this process. The claimant was a member of staff employed as a "care enabler". Part of her role involved cleaning students, including their genitalia. Her complaint was based upon having to clean students shortly after assisted masturbation had taken place. Although successful in her claim, the Tribunal had made a "permanent anonymity order" purportedly under r.49 and a RRO under r.50. The claimant appealed. The EAT considered the limitations on rr.49 and 50 both as to the scope and duration. It concluded despite the allegations being expressed by the claimant's representative "hyperbolically", that nothing in the claim supported allegations of a sexual offence or misconduct. Underhill J highlighted that rr.49 and 50 created a specific protection derived from s.11 of the Employment Tribunals Act 1996 and the Disability Discrimination Act 1995. However, he identified the wider power for the Tribunal to regulate its own procedure and the possible need to protect an individual's rights under Article 8 of the European Convention on Human Rights. Whilst accepting the appellant's submission that r.49 could not apply to the facts, he went on to conclude that permanent anonymity in the register was merited. In relation to an RRO, this was remitted to the Tribunal to resolve following the conclusion of a remedy hearing, whereupon the existing RRO would lapse. Underhill J however, gave guidance on how the Tribunal may make a permanent order dealing with the Article 8 rights rather than under r.50. The respondent in the Tribunal was subsequently successfully in securing an equivalent order relating to the facts of this case, (therefore outside r.50) and with a permanent duration.
As a consequence, the draft rules on privacy (r.55) simplify the approach by amalgamating the types of order under rr.49 and 50 and by relying on three broad principles, namely "interests of justice", to "protect the Convention rights of any persons" or in the circumstances of section 10A of the Employment Tribunals Act 1996 (private hearings involving confidential information). Most particularly, whilst the Tribunal is required to specify a duration, there is no limit on that power.
Whilst these amendments will no doubt be relevant to specific cases, it more importantly highlights the flexibility of the Tribunal procedure. One can see how creativity may provide a valuable solution when justified, with the Tribunal and EAT being receptive both on a case by case basis and in the fundamental drafting of the rules. With uniform guidance set to be published, this approach may prove even more valuable.
Although the rules are to be replaced in their entirety if the proposals are adopted, basic established principles will remain the same. The changes are largely a matter of shifting emphasis designed to create a more efficient process, including greater scrutiny of unmeritorious claims, more dynamic case management and greater control on trial duration. In the main, those bearing the cost of Tribunal litigation will likely welcome this move. However, it is important to consider how the drafting, managing and presentation of cases will need to be adapted to deal with this updated approach. Whilst the application of any new rules will need to be reviewed if implemented, it would seem the intention is for Tribunals to be more robust and perhaps less forgiving. For now, lawyers will be wise to be on their toes.
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