In addition, a mandatory grievance procedure debars employees from bringing most types of tribunal claims unless they have first lodged a written grievance with the employer and waited 28 days.
Analysis and Commentary on new rules
New Tribunal Rules of Procedure
What's the next number in the series? 20, 23, ...
Yes - it's 61. The number of rules in the new Rules of Procedure, replacing the existing 23 which, in turn, replaced a previous 20.
The new rules are pretty straightforward once you sit down and read them (and DO sit down and read them). The main changes are:
- Originating Application and Notice of Appearance now called Claim Form and Response Form
- 28 (not 21) days for the Respondent to file Notice of Appearance; but time runs from date the Response Form is sent out (rather than received);
- early sifting, and default judgment procedure where claim uncontested. Default judgment can be entered for a money sum, where it can be assessed from the contents of the Claim Form, not just for liability with award to be assessed;
- restriction in ACAS's power/duty to conciliate to 13 weeks from start of claim (in most cases), or 7 weeks in some cases (eg unlawful deduction from wages, statutory redundancy pay) - and no hearing can take place during this 'conciliation' period;
- substantial, and complex, changes to costs rules, including costs awards for preparation time for (subject to caveats) unrepresented parties, and a power to make wasted costs orders against representatives;
- if a decision is given verbally at the tribunal, written reasons will not be produced unless requested. The distinction between 'summary' and 'full' written reasons is abolished;
- the Register will no longer contain names and addresses of the parties (sometimes used by employers for 'blacklisting' purposes, and often used by representatives engaging in 'ambulance chasing'). Now it will just contain the decision and any written reasons.
The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004
Many changes - the main ones being:
- the small employer exemption is removed - employers with less than 15 employees have to comply with the Act;
- the justification defence is abolished for failures to make reasonable adjustments: if a reasonable adjustment is not made, the employer is liable;
- new definitions of 'discrimination' - direct discrimination (less favourable treatment on grounds of disability - which CANNOT be justified) and disability-related discrimination (less favourable treatment for a reason relating to disability, which CAN be justified).
- a formal definition of 'harassment';
- DDA protection extended to partners (and prospective partners) of firms, to barristers and to pupil barristers;
- DDA protection extends to police.
Equal PayTwo minor changes, namely:
- allowing a tribunal to decide whether work is of 'equal value' without first obtaining a report from an independent expert. Previously, the tribunal had to obtain a report unless satisfied there was no reasonable prospect of an equal value claim succeeding.
- creating a strong presumption that, where a job evaluation study has allocated different values to the man and woman's jobs, then the man cannot be a valid comparator.
National Minimum WageOkay, it's boring. But it is important. The main (adult) rate for workers over 22 increases to £4.85ph. The 'development rate' (for workers aged 18-21 inclusive) increases to £4.10ph.
And there is a new rate for 16 and 17 year old (above compulsory school leaving age) of £3.00ph. This new rate does not apply to 16 and 17 year old apprentices.
DTI Minimum Wage website