What are the possible changes to the Employment Tribunal rules?

The Tribunal Procedure Committee (TPC) has set out more details of possible changes to the Employment Tribunal Rules of Procedure 2013 (ET Rules). The TPC is the body that governs the practice and procedure in the First-tier Tribunal and in the Upper Tribunal.

In this article, Keystone Law employment partner Clive Howard sets out what the proposed changes are and how they could impact ET hearings.

The proposed changes

The TPC has published a consultation document giving an indication of the Tribunal rule changes that it wants to consider and implement in two tranches: the first in April 2025, and the second in October 2025. The consultation closes on 26 June 2024.

The consultation lists numerous proposed changes to the rules. These include:

• the transfer of responsibility for the ET Rules from the Department for Business and Trade to the TPC before the end of 2024;
• the responsibility for the Employment Appeal Tribunal Rules 1993 (the EAT Rules) moving to the TPC from the Lord Chancellor;
• allowing tribunals to make pro bono costs orders;
• a change to rule 17 to require a response to contain the grounds on which a claim is defended. Oddly, there is no current requirement to set out the grounds. This change would be helpful in allowing claimants at an early stage to understand the case against them; and
• a new rule requiring represented parties seeking an order from the Tribunal to provide a draft of the order that they want. Such a change would concentrate the minds of the representatives and give additional clarity to the Tribunal.

Case management hearings

Potentially the most significant potential change that the TPC is considering is to rule 56. Currently, under this rule, case management hearings are held in private. This will require case management hearings to be held in public unless there is a good reason to keep them in private. As it points out, this would be to further the principle of open justice. If this change was implemented, the strategy and tactics of both claimants and respondents would be affected. Often a major incentive to settle proceedings is to avoid the final public hearing. But if hearings at the outset of proceedings were also in public, there would likely be extra pressure on both parties to resolve matters quickly.

If you have questions about how the potential changes to Employment Tribunals could impact you, please contact Clive Howard.