Employment Law Update: Employment Tribunal Rules of Procedure and Pre-termination negotiations

08 August 2013

There were a number of important Employment Law changes which have taken effect from Monday 29 July 2013.

We have already reported on the changes in relation to Compromise Agreements/Settlement Agreements but there are two other important changes which are reported on below.

Employment Tribunal Rules of Procedure

The new Employment Tribunal Rules of Procedure came into force on 29 July. The most important aspect of the new Rules is the introduction of fees to be paid at various stages of the claim.

Prior to 29 July, there was no fee for issuing a claim at the Employment Tribunal (unlike in the Civil Courts where the fees can exceed £1,500 for issuing a claim). As a response to the number of frivolous and speculative claims that were being brought, the Government has introduced a number of different fees to be paid by either party.

Employment Tribunal claims are to be split into “Type A” claims (claims of a straightforward nature, such as for failure to pay wages) and “Type B” claims (claims of a more complex nature such as for unfair dismissal or discrimination). The fee for bringing a Type A claim will be £160 and the fee for bringing a Type B claim will be £250. These fees are payable by the Claimant (usually the employee) on bringing the claim before the Tribunal. Claimants will also have to pay a standard fee if their claim proceeds to a Hearing which is £230 for Type A claims and £950 for Type B claims. If the claim is a mixture of Type A and Type B then the higher fee will apply.

There are also some fees which are payable by the Respondent (usually the employer). For example, if Judgment is entered against the Respondent and they wish to make an application for this Judgment to be set aside then they must pay a fee of £100.

Pre-termination negotiations

“Pre-termination negotiations” have now been introduced. If an employer makes an offer of a negotiated settlement before a dismissal, this will now be inadmissible in any subsequent unfair dismissal proceedings unless there has been improper behaviour.

For example, an employer may wish to dismiss an employee (for poor performance) without following a full and fair procedure for doing so as it can be time consuming and difficult to do. Therefore, the employer may make an offer to the employee to “go quietly” for a sum of money. This offer may be rejected by the employee and the employer may subsequently decide to follow the full and fair procedure for dismissing them (such as, depending on the circumstances, holding meetings with the employee and informing them of how they can improve and stating that if they do not improve then they shall be dismissed).

Previously, the employee would be entitled to bring an unfair dismissal claim on the basis that a fair procedure was not followed (as the employer’s mind had already been made up to dismiss them as evidenced by their offer to the employee to “go quietly”). As of 29 July, such offer would not be admissible in Tribunal Proceedings and the employee could not rely on it as evidence that the decision had already been made to dismiss them.

Please note that this only applies in cases where the employer has not behaved improperly.

For further advice on bringing or responding to an Employment Tribunal claim or conducting pre-termination negotiations, please contact our Employment Team.