Saturday 25th February 2012 at 10:16am

The Underhill Review of the Employment Tribunal Rules

In November of last year, the government announced that it was asking Mr Justice Underhill, the outgoing President of the Employment Appeal Tribunal, to lead a Fundamental Review of the Rules of Procedure for Employment Tribunals.

The emphasis on that document was on the need for simplicity. Underhill was being asked to produced “a streamlined procedural code”, so that “where claims are brought to an employment tribunal, all users’ experiences will be improved”.

Further suggestions about what might be in the new Code were set out in the terms of reference, which set out that the purpose of the review was to enable “robust case management powers” to “be applied flexibly, effectively and (insofar as is practicable) consistently in individual cases.”

Claimant representatives have a great deal of experience of “robust case management powers”, much of it negative, and will be watching carefully to see that the Underhill reforms do not lead to the generalisation of some Judges’ present habit of putting pressure on claimants to withdraw the majority of their claims without a hearing.

The other key passage of the terms of reference reads as follows, “Mr Justice Underhill’s attention is also drawn to an overarching policy consideration of Ministers, namely to develop insofar as is practicable a procedural code that facilitates interlocutory powers (as and where appropriate) being exercised by legal officers, as well as by Employment Judges and Tribunals.”

As for the the greater use of “legal officers” this should not be objectionable, so long as there are going to be clear guidelines (presumably, somewhere in the new Rules) as to what sort of case would be passed down in this way, and so long as the fully qualified Judges retained the power of review of case management decisions taken at this level.

Ministers have invited Mr Justice Underhill to assemble a small Working Group and a broader Expert User Group to advise on the eventual Code.

The government’s proposal is that the new Code should be available as soon as April; it will be interesting to see what results.

Posted in Articles | No comments yet