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Changes to Employment Tribunal procedure

PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.

The ERRA  2013 will introduce the following changes to Tribunal procedure:

  1. Vary the rounding up of annual adjustments. Annual adjustments to various employment awards (including a week’s pay for the purposes of calculating statutory redundancy payments and the basic award for unfair dismissal) will be rounded up to the nearest £1.
  2. Abolish discrimination questionnaires;
  3. Introduce mandatory pre-claim conciliations;
  4. Impose financial penalties on employers who lose at Tribunal of 50% of any financial award, with a minimum threshold of £100 and a maximum cap of £5,000. Where a non-financial award is made, the Tribunal will be able to ascribe a monetary value. The penalty will be reduced by 50% if paid within 21 days. However, the levying of the financial penalty will be at the Tribunal’s discretion and will therefore not be automatic. This measure is intended to be implemented in April 2014.
  5. Impose a cap on unfair dismissal compensatory award. This power will be introduced on 25th June 2013 and will allow the unfair dismissal compensatory award to be capped at the lower of one year’s gross pay (excluding pension contributions, benefits in kind and discretionary bonuses) and the existing limit.
  6. Introduce pre-termination negotiations with some exceptions, an offer made or discussion held with an employee with a view to terminating employment on terms to be agreed cannot be taken into account as evidence by the Employment Tribunal in a subsequent unfair dismissal case.
  7. Impose compulsory pay audit where an employer is found guilty of gender discrimination in relation to pay.
  8. Enable deposit orders and costs. From 25th June 2013, a Tribunal will be able to make a deposit order in respect of a specific part of a claim or response. It will also be able to make both a preparation time order and witness expenses order to a litigant in person.
  9. Introduce legal officers who will be able to make decisions in certain cases if all parties agree in writing although these plans have been held in abeyance for the time being.
  10. Introduction of fees in the Employment Tribunals. The following fees are expected to be introduced in July 2013.
  • A Claimant will be required to pay two fees: An issue fee on submitting the claim, and a hearing fee around 4 – 6 weeks before the full Tribunal hearing. Tribunal judges will also have a power to order the unsuccessful party to reimburse any fees paid by the successful party, although this will be at the judge’s discretion rather than automatic. Presently, the proposal will introduce the following fees dependent on whether a claim is a Type A or Type B claim.
  • Type A claims will include breach of contract, wages claims, holiday pay, redundancy pay, and some time off rights, which will attract an issue fee of £160 and a hearing fee of £230, whilst Type B claims, which will include claims such as unfair dismissal, detriment, and discrimination claims will attract an issue fee of £250 and a hearing fee of £950. There will also be set fees for certain other applications, such as an application for setting aside default judgment, dismissing the claim on withdrawal, breach of contract counter claims, judicial mediation, or review of the judgment. The Government also intends to consult further on a “rapid resolution scheme” that would provide a cheaper and expeditious determination of low value straight forward claims such holiday pay.
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