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PREVIOUS SPEAKERS:

Chris Chapman

ILS Spring Conference 8 May 2004

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Title:"Employment Tribunal Reforms – An integral part of workplace dispute resolution or an economy measure?Do they achieve the ideals of access to justice, fairness and efficiency, and user-friendly public service?"

The opinions expressed in this paper are those of the author personally and do not necessarily represent the views of any of the organisations with which the speaker is connected.

1. Focus of the paper

1. The second part of the title of this paper is drawn from the Minister’s foreword to the July 2001 White Paper entitled "Routes to Resolution". In this paper I focus on the impact of the Rules and the new tribunal claim forms, in the context of the proposed dispute resolution procedures.

• To what extent will the new Rules, and the revised claim and response forms inhibit access by claimants and respondents with legitimate cases?

• Will the new Rules, with the focus on more proactive and interventionist case management increase efficiency without creating unfairness?

 

• Will the new forms, coupled with the Rules and in particular the Dispute Resolution Regulations be user-friendly to tribunal users?
• Alternatively will the complexity of the Dispute Resolution Regulations, the complicated rules in relation to time limits and the complexity of the forms inhibit genuine claims and exclude respondents with legitimate defences?

1. Introduction

1. The three linked measures to be introduced in October 2004: the Dispute Resolution Regulations, the Tribunal Rules, and the new claim and response forms all stem from the thinking underpinning Routes to Resolution. It led to the Employment Act 2002, the Employment Tribunal System Task Force Report in 2002, the Dispute Resolution Regulations 2004, the Employment Tribunal Rules 2004, and the new documentation to be used in tribunal proceedings from 2005.
2. Indirectly it has prompted the revision by ACAS of its Code of Practice on Disciplinary and Grievance procedures, and the redefinition by ACAS of its statutory responsibilities in respect of conciliation in the light of fixed period of conciliation introduced by the Tribunal Rules. All of these changes, apart from the 2002 Act have been introduced by secondary legislation trailed by a plethora of discussion papers. The only casualty from the original government blueprint trailed in Routes to Resolution is the notion of charging fees to parties in employment tribunal proceedings.

2. Routes to Resolution

1. A number of key assumptions were set out in this initial consultation document, based on a statistical analysis derived "selectively and inaccurately" from the findings of the 1998 Survey of Employment Tribunal Applications. (SETA) If the government has been selective in its use of the figures, are we embarking on reform for which the case has been only poorly made out? These concerns have been increasingly raised by academic commentators, by the previous President of the Employment Tribunals, Judge Prophet, and by Labour Peers. Subsequently the figures and the conclusions drawn from them have been revised by the Secretary of State and successive Ministers at the DTI:

• 64% of applications to Employment Tribunals come from employees who have not attempted to resolve the problem directly with their employer.
• The triumvirate of Labour peers, Wedderburn, McCarthy and Turner, exposed this misinterpretation of the SETA research. Hepple and Morris scathingly dismiss the government’s case for Dispute Resolution as based on "simplistic, inconsistent and selective use of social science research."
• This 64% figure was later amended to the statement that 37% of claims had involved no attempt to resolve matters at the workplace; and in 62% of cases there had been no prior meeting.

1. The attitude of the DTI can I would suggest be gleaned from these three quotations drawn from the consultation document and highlighted in the ILJ article:

1. "Employment Tribunals should take their proper place as the

backstop to enforce individual employment rights"; (Para.1.10)

2. "…the costs to individuals, businesses and the economy are

high relative to the types of problems handled and the compensation to individuals that is at stake." (Para. 2.12)

3. "Resolving individual employment disputes has a considerable cost to the taxpayer." (Para. 2.17)

1. Responses to the initial legislation in the academic literature

   1. Professor Gwyneth Pitt delivered a paper on the Employment Act 2002 at the 2002 ILS Oxford Conference.Her observations on the dispute resolution provisions of the Act were that firstly they appeared to be inspired by a desire to save money, secondly they were being introduced before any evaluation of the impact of the case management reforms of the 2001 Tribunal Rules, and overall the dispute resolution provisions would potentially undermine the status of the ACAS Code of Practice.
   2. His Honour Judge Prophet, at that time President of the Employment Tribunals, wrote a memorandum, subsequently attached as an appendix to the 12^th Report of the Parliamentary Joint Committee on Human Rights. In it he raised a number of concerns and made an equal number of what may turn out to be valid predictions. Firstly he criticised the government for introducing the legislation in advance of the Task Force Report; he gave notice of opposition to what he perceived to be the strategy of creating barriers to access and imposing penalties for lapses in procedures. In particular he posed the valid question at paragraph 7 of his memorandum of why an employee refused a redundancy payment to which he is legally entitled might have his payment reduced if he failed to raise a grievance. He of course was unaware at that time that the same employee might even be denied access to the tribunal at all for failing to give an acceptable reason for using the applicable procedure.
   3. He also had questions about the 62% figure mentioned above, the problem of time limits, and the potential for fixed periods of conciliation reducing the number of settlements.

    

   4. However the main thrust of his paper is a perception that the executive was encroaching on what is or ought to be a judicial function. He predicted that the dispute resolution provisions would lead to more complicated cases, more interlocutory work, delay, and longer hearings.
   5. Professors Bob Hepple and Gillian Morris published their article, from which I have already quoted, in the Industrial Law Journal in 2002. The article should be compulsory reading for anybody who still believes in the validity of the statistical case presented by the government in both Routes to Resolution and the Regulatory Impact Assessments published at the time of consultation on the Dispute Resolution Regulations. It is dismissed as "simplistic, inconsistent, and selective use of social science research". The authors’ conclusions were that the dispute resolution reforms were "harbingers of a long term trend to diminish justiciable rights, increase dependence on soft law, and to privatise enforcement through management controlled processes in preference to independent public tribunals." They identified the cost reduction agenda of the government set out in the consultation document, subjected the government figures to a ruthless analysis, queried, (as did Judge Prophet) how it could ever be justifiable to reduce compensation in an equal pay claim or a wages claim, for failing to follow a grievance procedure, and concluded that the object of encouraging employers to follow procedures could have been just as easily achieved by making the ACAS Code enforceable. It is of course indirectly enforceable in the ACAS Scheme for unfair dismissal disputes where the question of fairness is determined with reference to the Code.
   6. Further criticisms have tended to focus on the draft dispute resolution proposals themselves. The process involved publication of a consultation document in July 2003, accompanied by draft Regulations. They were seductively but disconcertingly brief: 7 pages in length, and containing just 12 Regulations. The government published its response to that consultation in January 2004. It is 42 pages in length. It resulted in separate heavily revised Regulations which were published in January 2004, made in March and will come into force on 1^st October. They now run to 18 pages in length and contain 18 Regulations. Simplicity was the first casualty of that process.
   7. User-friendliness was arguably the second. The Regulations contain in one sub-clause, Regulation 12(3), a masterpiece of parliamentary draftsmanship that almost led me to retrieving the damp towel to wrap around my head that had been abandoned when the law on maternity leave had been tidied up. I quote it as an example together with my own interpretation of what it means because it was a government aim that these Regulations would be easily understandable to employers and workers. Bear in mind that failure to comply with the relevant statutory procedure will lead to possible rejection of the claim by the tribunal and a penalty in compensation:

1. the procedure had applied, and
2. there had been a failure to comply with a requirement of the procedure that was attributable to him.

1. Now what that means in plain English is as follows:

• An employee (or the employer) has failed to commence the applicable statutory procure because of fear, harassment or impracticability;
• As a consequence the procedure has not been commenced;
• Is it one of the parties who has failed to commence the procedure because of fear, or harassment?
• If so the procedure will still be deemed to apply; but
• The party in default will be fixed with responsibility for non-compliance with the procedure.

1. You can get a flavour of the government’s embarrassment at the need for the substantial revision that took place after consultation in paragraph 15 of the Response. In paragraph 145 the complexity is justified at the same time as the failure to achieve the desired simplicity is acknowledged: " The Government acknowledges that the Regulations are not simple. However this is unavoidable to ensure that they work sensibly in all the different situations that arise in employment, and the overall thrust of comments made in response to the consultation document has been that the provisions should be more precise and detailed". However those comments did not come, I would submit, looking at the list of organisations listed as having responded to the consultation, from the employers at whom the Regulations are directed. I would also venture to suggest that the government could have achieved its objective just as easily by giving more force to the ACAS Code, as argued by Pitt, Hepple and Morris.
2. In concluding this analysis of the commentary on the Regulations I will select the description of them as a "dog’s dinner", coined by Peter Schofield, Head of Legal Affairs at the EEF. He identified a number of potential problems in the regulations: If an employee fails to attend the statutory meeting the tribunal will have to consider such issues as reasonableness, practicability, reasonable practicability, and forseeability in order to decide which of four possible consequences will be visited on that non-attendance. As he said of this and other features of the Regulations: " If the intention is to foster dispute resolution at the workplace, while cutting down on the resources devoted to tribunal claims, this is a funny way to go about it".
3. The proposals for introduction of a three-tier conciliation service to be introduced at the same time as the new Tribunal Rules in October have been dismissed by Lord Wedderburn as the "product of a tiny but inexperienced mind". ACAS has made it clear in its discussion document that outside the fixed periods of conciliation its services will only be available to parties in carefully circumscribed scenarios. I return to that later in my paper. At this point I merely briefly flag up the criticisms of Stephen Levinson in the April ELA Briefing, to which I return later in this paper. He predicts potential additional discrimination claims to attract the longer conciliation period and sees the periods as too inflexible and the distinctions as too simplistic.

1. The Triple Alliance of measures in October 2004

1. The Dispute Resolution Regulations cannot be seen in isolation from the proposed new Tribunal Rules and the new claim and response forms, which will be compulsory from 2005, but inevitably widely, used from October this year. The contemporaneous introduction of the three initiatives is not accidental and their effect will not be benign. Despite the extensive consultation that has taken place with the various stakeholders I am far from convinced that either potential claimants and their advisers, employers and their advisers, or the ETS itself at either the level of the judiciary or the support staff is geared up for the introduction of these three linked measures, or trained or resourced adequately for their introduction. For example training on the new Rules for chairmen will be limited to Regional Chairmen and a few selected full-timers. The rest will be expected to assimilate it as they go along. In contrast the Human Rights Act was delayed until all chairmen had attended the compulsory one-day seminar. What is likely to have more impact on the day-to-day work of tribunals?
2. In the next section I will focus on the Rules and the new claim and response forms which will be used by parties after October and which will be compulsory from April next year. Before doing so I set out the government’s estimates of the likely impact of the new procedures on both tribunal applications and costs to employers.
3. The Partial Regulatory Impact Assessment (RIA) that accompanied the July 2003 Consultation document based its calculations on the likely impact of the introduction of dispute resolution procedures on the 2001/02 figures for tribunal applications. This was the high water mark for tribunal applications. Nevertheless taking those figures as the starting point (110,000 applications) the government assumed that the number of tribunal applications after one year of the Dispute Resolution procedures being in force would be 70, 000 to 75, 000 applications annually (assuming 100% compliance). On these figures there would be a 35 to 40% drop. Assuming 60% compliance the number of applications would be 100-105, 000, decreasing gradually to 70-75, 000 over five years.
4. By the time of the Full Regulatory Impact Assessment published with the government’s response in January 2004, the figures had been adjusted but the government was still anticipating, from these measures alone, a reduction of 34,000 to 37, 000 applications a year. The document gives a number of alternative figures based on a number of key assumptions and assuming various levels of employer and employee compliance. The anticipated costs savings are estimated at annual savings to employers of £68-74 million, and to the taxpayer around £31 to £34 million per year.
5. A similar partial RIA accompanied the consultation on the draft Rules in December 2003. Again the figure of 100, 000 applications is taken as a constant figure: the increase in applications because of new jurisdictions being offset by the reduction in applications occasioned by the dispute resolution procedures. It is assumed that from 2005/6 there will be 70,000 to 75,000 tribunal applications a year.

2. Commencing Tribunal proceedings after October 2004

1. Any claimant (the new title replacing applicant) commencing tribunal proceedings after October 2004 will be required to supply the following additional information in addition to the information already required under the present Rules:

• Whether or not the claimant is or was an employee of the respondent;

• Whether the respondent dismissed the claimant; [for these purposes dismissal excludes constructive dismissal]

• Whether the claimant raised the subject matter of the claim with the respondent in writing at least 28 days prior to submitting the claim; and if not, why not. [Rule 1(3)]

1. After April 2005 use of the new application form will be obligatory. As John MacMillan, Regional Chairman in Nottingham has reminded us the present Rules do not even require the applicant to use the IT1 at all as long as the written application supplies the required information. The form is eight pages long and the accompanying guidance notes are also eight pages long. In a poor recognition of the difficulties of users with spatial awareness problems, it distinguishes essential information from required information if relevant, with use of * and · One of the most important features of the new Rules is the obligation of a claimant, at the risk of rejection of the application, to indicate if the relevant grievance procedure has been followed and if not why not. Yet the space provided for supply of that information is only 150mm. Not only that but the claimant is not encouraged in either the form or the guidance notes to use an additional sheet of paper. Welcome innovations are the sections for an employee to give details of post dismissal employment and the basis of calculation of wages claims, but the guidance notes on extension of time limits beyond the three-month periods are not necessarily going to be clear to unrepresented claimants.
2. One of the most startling claims about completion of the new claim forms at paragraph 28 in the RIA accompanying the Rules and repeated at paragraph 4 in Annex B to the consultation paper on the new forms deserves quoting in full. In relation to the extra time and cost burden on claimants and advisers of completing the form it says: " The net cost to claimants and respondents is estimated to be zero at the most, with possibly a saving, because the information required would have to be given anyway, and it is more efficient to do so in one go at the outset".
3. The Regional Secretary can reject the claim if it does not include all the required information under Rule1; if answers have not been provided to all the required questions; if a time limit applies which the tribunal has no power to extend [interim relief applications]; if the claimant does not meet the qualifying conditions for the right claimed; or if the tribunal does not have jurisdiction to award the remedy claimed (for example personal injury compensation for an accident). In particular the ETS can reject the claim if the rules in respect of the dispute resolution provisions of section 32 of the Employment Act 2002 apply and the claimant has presented the claim in breach of those rules. The Rules give as an example of a permissible ground for rejection: a claimant with insufficient continuous employment. (In Rule 3.2. (d)) However it would also presumably permit the rejection of a claim not presented in time to the tribunal notwithstanding 3.2. (c), on the basis that a qualifying condition for claiming unfair dismissal is presentation of the claim in time. The claim can be rejected by the secretary under either Rule 3 (1), (failure to use the prescribed form), or under Rule 3(2) (the procedural reasons), or both.
4. If the claim is to be rejected it must go to a chairman accompanied by a written statement of reasons for rejection. (Rule 3(4)) The chairman can decide to accept or not to accept the application. Before doing so he may, if he considers it appropriate, invite the claimant to a pre-acceptance hearing. [Rules 3(4), (7) and (12)]. A pre-acceptance hearing can be held in private, except where the holding of a pre-acceptance hearing is required, when it must be in public [The Rules as numbered refer to a pre-acceptance hearing, "which is required to be held under paragraph (5)"; paragraph (5) contains no such requirement. Either this is a mistake in the drafting or, as a pre-acceptance hearing is always discretionary, then it is a matter of discretion entirely for the chairman whether to hold the hearing in private or in public. The reference to paragraph (5) may be intended to refer to paragraph (4) but this particular Rule does contain some ambiguity.]
5. If the chairman considers that the claim should be rejected, but that the claimant will be unable to remedy the defect in the claim which prompted the decision to reject the claim, and resubmit the claim in time, then he must invite the claimant to make oral or written representations, which will be considered at a pre-acceptance hearing. Quite how the logistics of this are to be handled we will have to wait and see; presumably it can be a telephone hearing, but what if the respondent is to attend to make representations? The Rule specifically states that oral representations must be heard at a pre-acceptance hearing but under Rule 15 such a hearing may be conducted by video, telephone or minicom. It will also lead to an interesting argument on the question of reasonable practicability if the claim is subsequently received out of time.
6. If the chairman decides to reject the claim for failure by the claimant to comply with the dispute resolution provisions of the Employment Act 2002, then the claimant must be notified of the consequences of failure to comply with section 32 of the Act, and the time limit applicable to the claimant’s claim. Rule 4 then provides that the tribunal may not deal with the substance of the claim, where the chairman has determined that the claimant has failed to comply with section 32(6), until the claimant has remedied that failure.
7. Any decision of a chairman not to accept the claim is capable of review under Rules 36 to 38. The new Rules amplify the number of circumstances in which a decision is susceptible to review and at the same time the procedure is more formalised to enable a preliminary consideration of an application for review. Considerations of space prevent me from considering that part of the new Rules but it is covered fully in the paper I have placed on the Sweet and Maxwell Lawtel site.
8. The ETS has estimated the implementation costs of the new Rules at the modest figure of £609,000, and the costs of the new screening procedures in the tribunal at an even more modest figure of £300,000 per annum. All of these costings are based on the assumption that it will take an additional ten minutes of staff time to look at an application and fifteen minutes of a chairman’s time to review a rejected application after the initial vetting. The footnotes are revealing; a chairman’s time is actually costed at £70 per hour. We obviously never go to the toilet. The government is predicting, after allowing for bedding in, that at first 10% of claims (8200 to 8,800) will need to be looked at by a chairman under the pre-acceptance procedures but the figure will drop to 5% a year. I would be interested to hear the views of users and full-time chairmen who at present consider whether to issue a Rule 1 letter as to whether these predictions for the number of doubtful claims or the time need to consider them is realistic. Again the RIA makes this curious claim, at paragraph 35: " The benefits of the measure are that a significant number of claims that would ultimately be unsuccessful in any event (emphasis added) will be ‘ weeded out’ at this initial stage. This bald assertion is nowhere backed up with evidence in any of the consultation documents or even in the RIA itself.
9. The key comment is contained in paragraph 37, where it is stated in bold type that the new pre-acceptance procedures will save the Exchequer between £1.2 to 2.6 million in 2005/06 falling to £0.6 to £1.2 million by 2010/11. The ETS is unlikely to see any increase in its budget for the next three years. The fee for part-time chairmen needs to be increased by £16 to match comparable judicial fees. The savings will be achieved by a crude combination of two measures: non-submission or rejection of claims (many of which may be genuine) and an inevitable reduction in the number of sitting days, which must inevitably lead to delay.

1. Responding to Tribunal proceedings after October 2004

1. Respondents, or as they may be described in the future, defendants, will respond on the prescribed response form. As far as information to be supplied is concerned nothing changes. What is to change is the consequence of failure to respond in time. At present either a respondent is given an extension of time or the file will be treated as "appearance not entered." The application is then allocated a hearing date, the applicant still has to prove his or her case, and may be unsuccessful.
2. From October onwards this will change. Firstly the respondent has only two options on receipt of a claim from the tribunal: either respond, using the prescribed form (after April 2005) and within 23 days of the date of posting of the claim, or apply for an extension of time under Rule 11. The response form is far simpler than the claim form: it is five pages along and has only three pages of attached guidance notes.
3. A respondent may apply for an extension of time to respond. [Rule 5(4). However that application must be made within the 23-day period for responding to the claim. It must explain why the respondent cannot comply with the time limit, and the time limit can only be extended if the tribunal or the chairman considers it just and equitable to do so.
4. The power to seek an extension of time is governed by Rule 11 with the following consequences: The respondent must seemingly explain how the extension will assist the tribunal or chairman in dealing with the proceedings efficiently and fairly; if the respondent is legally represented he must provide all other parties with details of the application for an extension of time, the reasons for seeking the application, and the procedure under Rule 11 for objecting. That duty is placed on the tribunal in respect of unrepresented respondents.
5. The chairman may refuse the application and if so the Regional Secretary must inform the parties. It is not clear that the chairman is either obliged to give reasons for refusal or that the decision not to grant the extension of time is capable of review, because Rule 11 makes no provision for either reasons for such decisions or for review of the decision to refuse the application for time. Secondly the combined effect of Rules 30 and 32 is that only judgements must be supported by reasons and a decision not to extend time is not a final determination of the proceedings or an issue in the proceedings as far as I can see, even though the effect of refusing the application may lead to the respondent being subjected to a judgement in default. A chairman has a discretion whether or not to give reasons for an order or a direction, but as Rule 30 defines an order or a direction as an instruction to a person to do something, it is clear that a decision not to extend time does not fall into the category of an order or direction. Furthermore Rule 35, which deals with the tribunal’s power of review, applies only to decisions not to accept a claim or response. The only avenue therefore open to the respondent refused an extension of time under Rule 11 is to wait for the tribunal to reject the response, and then challenge the decision under Rule 7(2)(b).
6. The message therefore is quite clear: respond in time or risk summary judgement. I have already been told of some of the practical problems this will lead to. Many education authorities have an arrangement with the Post Office that school post is not delivered during the summer holidays; all of you acting for even responsible and efficient employers will have war stories of applications lying in in-trays to the last minute, and then always on a Friday.
7. Again the Regional Secretary can reject the response for one of the prescribed reasons: failure to supply the required information, failure to respond in time, or failure to use the prescribed form (after April 2005). The response then goes to a chairman. The chairman can determine whether to accept the response. In doing so he has the power, where appropriate, to invite the claimant and the respondent to a pre-hearing review to determine the question of whether or not to accept the response. [Rule 7(4)]
8. However if the respondent either fails to respond or the response is rejected then the tribunal may issue a default judgement, without a hearing, dealing with either liability alone, or liability or remedy. The only option open to the respondent in such a situation is an application for review. Is such a draconian step and the absence of any challenge to a chairman’s decision to refuse an extension of time consistent with the ideals quoted in the title of this paper?

 

2. Case management in the future

1. The Rules build on the measures adopted in the 2001 Rules. The Rules set out a number of provisions to deal with case management. Rule 10 in particular contains a general power for the Tribunal to manage proceedings. Parties may apply for appropriate directions and orders but the emphasis is on the power of the Chairman to exercise his own initiative, on occasions even without giving the parties the opportunity to oppose the directions given until after the event. In this respect the practice of proactive case management, which is the norm in civil procedure, is being maintained and developed since the importation of the overriding objective from the Civil Procedure Rules into the 2001 Rules.
2. The chairman is given a general power to mange the litigation under Rule 10. In particular the Rule deals with all the matters at present governed by Rule 4: the chairman may make a direction on his own initiative with or without giving the parties the opportunity to make oral or written representations; however if he does the parties are to be informed of their right to apply to vary or set the direction aside.
3. The parties can apply at any time under Rule 11 to issue, revoke or vary directions given by the chairman under Rule 10, for a case management discussion (under Rule 17), or for a pre-hearing review (under Rule 18). I deal with the two latter types of hearing in the next section.
4. What is clear is that the tribunal will be required to be even more pro-active in the conduct of litigation. This begs a number of questions. Firstly will there be more "satellite litigation", which is one of the diseases that has affected the post Woolf reforms in the civil courts? Secondly will that interventionist approach be consistent from Region to Region? In that respect the attitude of the President to Practice Directions will be paramount. Will the EAT support pro-active chairmen? Will it increase the cost to the parties and lead to more front loading of costs and delays? Is there still a case for an adversarial system in the tribunals?

3. Hearings under the New Rules

1. The new Rules envisage five possible types of hearing in the future:

1. Pre-acceptance hearings under Rule 3
2. Case management discussions under Rule 17
3. Pre-hearing Reviews under Rule 18
4. Hearings under Rule 26
5. Review Hearings under Rules 36 or 38

1. The Regulations in fact contemplate another type of hearing: it is defined in Regulation 2 (the interpretation section) as a "sitting of a chairman or a tribunal duly constituted for the purpose of receiving evidence, hearing addresses or doing anything lawful to enable the chairman or tribunal to reach a decision on any question".
2. I have covered pre-acceptance hearings in section 6; space and time considerations mean I can only direct you to the relevant Rules on full and review hearings, leaving me to concentrate on case management discussions and pre-hearing reviews.
3. The case management discussion is new. It is envisaged that case management discussions, dealt with by a chairman, may deal with matters of procedure and management of the proceedings, and may be held in private. This is an innovation. They can deal with any of the matters listed under Rule 10(2); standard directions matters for example; they cannot for example resolve the matters listed in Rule 18(4), such as jurisdictional issues usually dealt with in the past at preliminary hearings, nor can a party be struck out at a case management discussion [Rule 17(3)]
4. No case management discussion may take place without prior notification to all interested parties, to enable them to make written submissions, or advance oral argument at the discussion.
5. Under the new Rules pre-hearing reviews will amongst other matters fulfil the function of a pre-hearing review under the old Rules, preliminary hearings under the old rules, and directions hearings. There is also scope for overlap with both case management discussions and hearings to determine applications in the course of the proceedings under Rule 11. Before a pre-hearing review can take place the parties must have received prior notification to enable them to send written representations or attend the hearing, but seemingly only to make representations, not to give evidence, unless the situation described in the next paragraph applies.
6. At a pre-hearing review the chairman may however carry out a preliminary consideration of the proceedings and determine any interim or preliminary mater relating to the proceedings. (emphasis added.) On the face of it this gives a chairman, sitting alone (my emphasis), the power, after hearing evidence, to determine the following jurisdictional issues: Whether an application is in time, to the extent that has not already been determined at the pre-acceptance hearing; issues relating to continuity of employment; whether a claimant is an employee; or whether a claimant has been dismissed in a TUPE situation.
7. This view is strengthened by Rule 18(3), which provides that, notwithstanding the preliminary or interim nature of the pre-hearing review, the chairman can give judgement on any preliminary issue of substance relating to the proceedings. (emphasis added.) That view also receives support from the provisions of Rule 18(4), which provides that at the pre-hearing review the chairman, may make the following judgements or orders: (a) a judgement or order determining the right of any party to bring or contest proceedings;
8. With the possible exception of time limit issues, it is virtually inevitable that a decision on the other situations will require evidence from both parties. In that respect therefore it is unusual to see the Rules giving a chairman, sitting alone, such wide powers to determine issues which in reality will not be preliminary issues but will be determinative of the final outcome of the case, such as whether a claim is in time or the claimant has been employed for twelve months. If the government had intended to exclude such fundamental issues from the ambit of a pre-hearing review, then the Rule will require revision. One must assume therefore that the Government did intend that a chairman sitting alone would be empowered to determine a wide range of issues, at present dealt with by a full tribunal at a preliminary hearing. This is by the way a power contained in a Rule not even invested with the title of "hearing" in the heading to Rule 18,despite being entitled a "hearing" by Rule 15.
9. One type of hearing that used to take place under the old Rules, the preliminary hearing, held under Rule 6 (Entitlement to bring or contest proceedings) does not appear in the list as a particular category of hearing. It is likely that typical preliminary issues such as whether a claim is in time, or whether an employee has sufficient continuity of employment, will be dealt with either at a pre-acceptance hearing, or at a pre-hearing review. In both these examples the issue is normally quite simple, it is unusual for the respondent to either give evidence, or even attend the hearing, and arguably it will expedite matters for these simple jurisdictional issues to be resolved before the respondent is put to the expense or inconvenience of resisting the claim.
10. It is less clear that the question of whether the claimant is an employee, whether there has been a transfer of an undertaking, or whether the claimant is a disabled person can so readily and conveniently be disposed of without evidence and argument from the respondent. It is also doubtful that it will always be either possible or desirable for such fundamental issues to be disposed of at a pre-hearing review. Rule 18(2)(d) provides for evidence to be taken despite the essentially preliminary or interlocutory nature of the pre-hearing review, and therefore it would normally be the case that the tribunal will take evidence rather than consider representations on these fundamental issues.
11. With the exception of full hearings and review hearings all these hearings can be conducted by telephone, video, or Minicom, if the chairman conducting the hearing considers it just and equitable to do so. [Rule 16(1)]

1. The future of conciliation under the Rules

   1. I have left this subject to the end although from now on conciliation, if it takes place at all will be confined to the beginning of the process rather than being available to the parties throughout. Much of the focus of the dispute resolution provisions of the Employment Act 2002 is on early identification and resolution of grievances and issues in the workplace. Partly because of that and the desire, secured by fast track procedures for money claims in particular, to ensure speedy resolution of disputes by tribunals the focus is on a shorter period for conciliation by ACAS, where ACAS has a statutory duty to conciliate.
   2. The Rules achieve these aims by two specific routes: the division of claims between the standard and the short conciliation period and the facility to terminate the conciliation period in the event of the occurrence of certain acts. Correspondingly there is a power to extend the conciliation period if it is likely to promote a settlement. Finally claims under what I will broadly term discrimination legislation are excluded from the standard and short conciliation periods. The purpose of the time limited conciliation period is to give the parties a limited opportunity to reach an ACAS conciliated settlement.
   3. The conciliation period starts on the day the claim is sent to the respondent; no hearing except a case management discussion or pre-hearing review may take place during the fixed conciliation period; however the notice fixing the date for hearing may be sent out during that period.
   4. The short conciliation period lasts seven weeks; it will basically apply to claims for money owed by employers to workers. The short period can be extended to the standard period if a chairman considers that on the basis of the complexity of the proceedings a standard period would be more appropriate, but only if the short period has not already expired.
   5. In all other claims the period is thirteen weeks; the period may be extended by a further two weeks if all parties agree to an extension; a realistic settlement proposal has been put forward and is under serious consideration by the parties; and ACAS considers it probable that the proceedings will be settled during the extended conciliation period; and ACAS has notified the Regional Secretary that the three previous conditions are satisfied. The Rules do provide for early termination of the conciliation period.
   6. ACAS published a discussion paper in February 2004. In it they made it clear that ACAS will not be in a position to offer parties their assistance outside the fixed periods unless there has been serious illness on the part of one of the parties, significant delay in receipt of the claim or response, extreme communication difficulties, significant complexities, or significant or unforeseeable changes in circumstances.
   7. As I have not been in practice for over 10 years I have no recent experience of ACAS involvement though I know from my research for my book on ADR how parties value the assistance they get. I am indebted to Stephen Levinson for his recent article, which confirms my anecdotal and instinctive reaction that the distinctions drawn in the Rules are simplistic and too arbitrary. Lord Wedderburn is quoted as having described the proposals as the product of a tiny but inexperienced mind. What is especially complex about many discrimination cases? In particular why is it assumed that they are more complex than a protected disclosure unfair dismissal claim, or a claim involving rolled up holiday pay, which would respectively attract the 13 and 7 week fixed periods?
   8. I accept Levinson’s view that the imposition of fixed periods ignores the variation between tribunal centres in fixing hearing dates. It makes no allowance for the valuable service ACAS provides for unrepresented parties. ACAS invited a response to its paper but it was couched in fairly inflexible terms, recognising the lack of flexibility inherent in the Rules.

2. Conclusions

1. Inevitably any conclusions to be drawn in advance of the legislation must be tentative and more in the nature of predictions. However adopting firstly Judge Prophet’s anxieties, then turning to my own themes outlined in the introduction it is permissible to draw some tentative conclusions.
2. The government itself accepts that the Dispute Resolution provisions are complex, over twice the length of the original draft, full of ambiguities and likely to lead to extensive litigation. Only time will tell if they do lead to an improvement in dispute resolution in the workplace. What is missing from the legislation is any alternative such as either workplace or external mediation and no support for the government’s own ACAS scheme for arbitration in unfair dismissal cases. In particular can we draw on the experience of the New Zealand Mediation Service, the Employment Relations Authority and the Employment Court in estimating how successful the process will be and in anticipating the problems that might emerge? I am told by the author of the first cited pamphlet that the New Zealand experience is that it produces a substantial number of claims in which the first critical issue is whether the employer has received the "grievance".
3. The other issue is how to measure success. Even if the number of applications to tribunals reduces to the predicted levels envisaged by the government how do we tell if the reduction is due to improved workplace procedures as opposed to frustration by claimants inhibited by the complexity of both the new workplace procedures and the claim forms or even ignorance of their existence?
4. The Rules and the revised claims and response forms, whilst lengthy, are fairly clear. The claim form in particular is a distinct improvement on the first draft, which looked like a loose compromise between a self-assessment tax form and a claim for housing benefit. Most employers and tribunals will welcome the need for the claimant to provide more financial information, either in relation to post dismissal employment or in relation to wages claims. However I am quite sure that many of the usual tribunal users seeking to recover unpaid wages will be inhibited if, in addition to raising a grievance with their employer, they are then expected to fill in an eight-page claim form. Arguably the same objective could also have been achieved by issuing standard directions to claimants to quantify claims, at least in claims for either unfair dismissal or discrimination dismissals.
5. The requirement for the worker to initiate a grievance procedure and then to wait 28 days, where for example the employer has withheld pay, will inevitably be seen as a barrier to access. As Judge Prophet queried, why should that person have to wait? There are no doubt many other obvious examples.
6. Despite the assurances given by government Ministers that use of the prescribed forms would not be obligatory, the Rules will make their use compulsory after April 2005. To be fair that possibility was contemplated in Routes to Resolution. It means that Judge Prophet’s rhetorical question has become a reality. Is it consistent with the ideal of access to justice and fairness to require a worker unlawfully denied wages to both submit a grievance and complete an eight page application form, especially if that employer has neither issued written terms of employment nor paid the prescribed minimum wage?

7. As far as the final prophecy is concerned we are in the hands of our customers. Tribunal chairmen in the past have left parties to fight their wars of attrition between themselves. The new Rules will encourage the parties and the tribunal to be more interventionist and proactive. It must lead to more interlocutory work, to more challenges to orders and directions, and to more review hearings.

8. That brings me back to my themes canvassed in the title. Do the changes sit easily with concepts of access to justice, fairness and efficiency, and user friendliness? To a large extent the same issues are relevant. If an aggrieved worker, wrongly refused payment of wages, is required to both raise a grievance and fill in a lengthy application form correctly can it be said that these obligations are either fair or conducive to facilitating access. Equally the employer whose first knowledge of a potential sex discrimination or constructive dismissal claim is the IT1 might legitimately complain that the employee should have raised it with the employer before embarking on litigation. However the tribunals already recognise these questions under the present regime and I am still not convinced that the case has been made for requiring all employees to use the one size fits all regime envisaged by the Rules, preventing the aggrieved employee from lodging an application at all until the procedures have been exhausted.

9. Whilst it may be seen as fair that respondents to claims should be required to submit to tight deadlines in which to respond, is it fair to small employers, with limited resources to require them to both respond in the timescale or request an extension in the same period. Will there be many genuine responses that will simply not be considered? Is it efficient to leave that respondent to apply to set aside the default judgement? In that respect how will tribunals interpret the obligation to apply "promptly"? How prompt is prompt? What is the logic in not simply fixing the period in which to apply?

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