Thanks to Naomi Cunningham of Outer Temple Chambers
In January 2015, the Government published a consultation on proposed amendments to the Employment Tribunal Rules of Procedure to do the following:
- limit the number of postponements to hearings that may be allowed to two per party, save in exceptional circumstances (or where the other party is at fault, or both parties want the case postponed in order to facilitate settlement negotiations);
- require applications for postponement to be made at least 7 days before the hearing, save in exceptional circumstances;
- oblige the employment tribunal to consider a costs or preparation time order where an application is made less than 7 days before the hearing.
This was a non-solution to a non-problem. The nearest the consultation came to identifying any evidence that multiple postponements are a causing serious difficulties in the employment tribunal system is a vague assertion that ‘stakeholders’ have ‘voiced concerns’ about the time proceedings can take. Proceedings can take too long, for various reasons. But employment tribunals are already required to exercise their general case management powers in accordance with the overriding objective, which includes avoiding delay. Nothing in the Government response explains how - or even whether - employment tribunals are thought to be getting the balance wrong at present, or how the proposed amendments will improve matters.
Thirty-three organisations and individuals responded to the consultation, most opposed to the changes, and many of them pointing out that the employment tribunals’ case management powers were already adequate to the task of granting postponements when they were necessary, refusing them when they were not, and awarding costs against parties whose unreasonable conduct gave rise to a need to postpone.
In its response published on 15 February 2016, the Government announced its intention to press ahead anyway, in the terms proposed in the consultation.