Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
Various other changes that will affect employment tribunal claims are also being brought in over the next year under the Enterprise and Regulatory Reform Act (ERRA) 2013 – and we will shortly issue a briefing on those changes.
From 29 July 2013, employment tribunals and the Employment Appeal Tribunal (EAT) will start charging fees. The fees, which are payable by claimants in the employment tribunal and appellants in the EAT, will be paid in two stages. First, there will be an “issue fee”, when the claimant or appellant submits the claim or appeal, then a “hearing fee” if the claim proceeds to a full hearing.
The amount of the fees in the employment tribunal will depend on the type of claim and also whether it is an individual claim or one brought by multiple claimants. For the more straightforward “Level 1 claims”, which will cover claims for sums due on termination of employment such as unpaid wages, redundancy pay and payment in lieu of notice, the issue fee for a single claimant will be £160 and the hearing fee £230. For “Level 2 claims”, which include things like unfair dismissal and discrimination claims, the respective fees for a single claimant will be £250 and £950. Claims submitted without the requisite fee will be rejected.
For claimants who cannot afford to pay all or part of the fees there will be a scheme allowing them to apply for fee “remission” as currently exists in the civil courts. Tribunal judges will have the power to order an unsuccessful party to reimburse the fees paid by a successful party, although this will be at the judge's discretion and not automatic.
For claims or appeals where the ET1 or Notice of Appeal was submitted before the new regime comes into effect, fees will not be payable.
New procedure rules
As a general rule the new rules will apply to all cases going forward from 29 July 2013, including those where the claim was submitted before 29 July.
Below is a summary of some of the key changes to be aware of under the new rules.
New “sift stage” – there will be a new initial “sift stage” after the claim and response have been submitted. This will involve the employment judge conducting an initial assessment of the merits of the case, based on the papers. The judge will be able to strike out all or part of the claim or response if they consider it has no reasonable prospects of success. They will also be able to strike out all or part of the claim if it is outside the tribunal’s jurisdiction.
It remains to be seen the extent to which employment judges will use their powers of strike out. They may be used only sparingly, in plain and obvious cases, as is the case now in the civil courts. However, they may adopt a more robust approach. In any case, it is likely that there will be fewer “tactical” claims as a result of this change and fewer unmeritorious claims and responses reaching final hearing.
Preliminary hearings – under the current rules, there are two different types of preliminary hearing: case management discussions (CMDs) and pre-hearing reviews (PHRs). CMDs are largely administrative hearings at which the employment judge issues directions to parties for the steps they will need to take in preparation for the full hearing. PHRs are currently used to determine preliminary issues, e.g. a claimant’s employment status or whether they have been dismissed. Under the new rules, CMDs and PHRs will be rolled into one preliminary hearing which will deal with case management and substantive preliminary issues. This will mean there will be a need for careful preparation for Preliminary Hearings as they could play a crucial role in how a claim or defence proceeds.
ADR – under the new rules it is specified that employment tribunals will wherever practicable and appropriate encourage the use by the parties of the services of Acas, judicial or other mediation, or other means of resolving their disputes by agreement. This ties in with one of the changes to be brought in by the ERRA 2013 under which new mandatory pre-claim conciliation will be introduced.
Costs assessment – currently any award of costs above £20,000 has to be referred to the county court for detailed assessment. Under the new rules, employment judges may now carry out this assessment themselves, which has the obvious advantage of saving time. It will still be possible, however, for employment judges to refer the assessment to the county court if they wish for particularly complicated assessments.
Payment – a new rule will also be introduced making clear that a judgement requiring a party to pay an amount of money must be complied with within 14 days. The Employment Tribunals (Interest) Order 1990 will be amended so that interest on an award will begin to accrue from the date of the judgment, but will not be payable if payment is received in full within 14 days.
For more information
For more information or advice on issues covered in this ebriefing, or in relation to handling Employment Tribunal claims generally, contact Matt Wort on 0121 214 3501 or firstname.lastname@example.org.
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