Employment analysis: The President of the Employment Tribunals for England and Wales, Judge Barry Clarke, has provided members of the Employment Tribunal National User Group (NUG) with an update concerning: (1) contact details to be used when sending queries about the MyHMCTS digital case management system from 1 December 2024, (2) how parties can express a preference about the composition of a tribunal panel (ie whether their case should be heard by a judge or by a judge with two lay members), (3) revisions to the case management agenda forms, and (4) the current status of the Practice Direction on the presentation of both claims and responses.

Employment analysis: Judge Barry Clarke, the President for the Employment Tribunals (England and Wales), and Judge Susan Walker, the President for the Employment Tribunals (Scotland), have published a joint letter, dated 18 December 2024, concerning the interaction between the current Practice Directions and Presidential Guidance documents and the new Employment Tribunal Rules 2024, which take effect on 6 January 2025.

Employment analysis: An employment tribunal is allowed to consider whether a COT3 settlement agreement should be set aside for misrepresentation. In doing so, it is entitled to look at without prejudice material because an exception applies to the without prejudice rule in those circumstances, according to the EAT.

Employment analysis: Rules 70–73 of the Employment Tribunal Rules (the ET Rules) provide alternative routes to reconsideration. Where an application is made by a party for reconsideration, that must be dealt with by the tribunal. There is no scope for a hybrid process where an application raising a single issue for potential reconsideration is commenced by a party but is then taken on by the tribunal ‘on its own initiative’, according Lady Wise in the EAT.

Employment analysis: The employment tribunal’s statutory jurisdiction to hear contract claims under the Employment Tribunal Extension of Jurisdiction (England and Wales) Order 1994 (the 1994 Order) includes only claims brought by an employee against an employer and excludes claims against anyone else (eg an associated company or the claimant’s trade union), even if they have a contract with the claimant that is connected with employment, according to the EAT.

Employment analysis: The President of the Employment Tribunals in England and Wales, Barry Clarke, and the President of the Employment Tribunals in Scotland, Susan Walker, have published a joint Practice Direction, and joint Presidential Guidance, on the recording of employment tribunal hearings and the transcription of such recordings. The two documents take effect from Monday 20 November 2023 from which time audio recordings of all employment tribunal hearings where the technical facility exists to do so, and where such recordings can be securely retained, will be made (subject to two limited exceptions).

Where a party to employment tribunal proceedings wishes to rely on covert recordings, an application for their admission into evidence will not succeed if unsupported by the recordings themselves and transcripts of them, as without that material an employment tribunal cannot adjudicate on their relevance. However such recordings will on occasion be relevant and ought to be admitted in the interests of justice. An application for their admission should be made as early as practicable, supported by transcripts of the material on which the party wishes to rely as well as the recordings of the material itself. Transcripts produced by the party itself will normally suffice. Where there is a large volume of such recorded material, a focused and selective application might be more likely to succeed. EAT: Vaughan v LB Lewisham.

ARCHIVED: This Practice Note has been archived and is not maintained. Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 SI 2013/1237 SCHEDULE 1 THE EMPLOYMENT TRIBUNALS RULES OF PROCEDURE INTRODUCTORY AND GENERAL 1 Interpretation "ACAS" means the Advisory, Conciliation and Arbitration Service referred to in section 247 of the Trade Union and Labour Relations (Consolidation) Act 1992; "claim" means any proceedings before an Employment Tribunal making a complaint; "claimant" means the person bringing the claim; "Commission for Equality and Human Rights" means the body established under section 1 of the Equality Act 2006; "complaint" means anything that is referred to as a claim, complaint, reference, application or appeal in any enactment which confers jurisdiction on the Tribunal; "early conciliation certificate" means a certificate issued by ACAS in accordance with the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2013; "early conciliation exemption" means an exemption contained in regulation 3(1) of the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014; "early conciliation

[Insert in para 8.2 of claim form ET1] Example 1 1 The Claimant was employed by the First Respondent as a [insert job title] from [insert date] until [his OR her OR their] dismissal on [insert date]. The First Respondent is [insert brief description of the nature of the Respondent, eg an international law firm]. The Second Respondent is [insert brief description of the nature of the Respondent, eg an international law firm]. 2 On or about [insert date] [the Second Respondent acquired the First Respondent’s business. OR [there was a service provision change in that the Second Respondent acquired the contract to provide [insert type of activity] to [insert name of entity for which the activity was carried out] OR the First Respondent contracted out the task of [insert type of activity] to the Second Respondent OR the Second Respondent

[Insert in para 8.2 of claim form ET1:] 1 The Claimant was employed by the Respondent as a [insert job title, eg service engineer] from [insert date] until [his OR her OR their] dismissal on [insert date]. The Respondent is [insert brief description of the nature of the Respondent, eg an internet service provider]. [ The contract of employment ] 2 [The Claimant’s contract of employment included a notice period of [insert details, eg three months].] 3 [Insert details of any other relevant contractual terms, eg ones that refer to disciplinary rules or procedures or of relevance to the conduct in question.] [ The Respondent’s disciplinary rules and procedures ] 4 [Insert details of any relevant provisions of the Respondent’s rules or procedures or any other relevant matter relating to them.] The Claimant’s dismissal [Set out

[Insert in para 8.2 of claim form ET1:] 1 The Claimant was employed by the Respondent as [insert job title, eg a financial analyst] from [insert start date of employment] to [end date of employment][ at its [insert details of particular office or location, eg London Headquarters]]. The Respondent is [insert brief description of the nature of the Respondent, eg a global investment bank]. 2 The Claimant’s contract of employment[, dated [insert date],] included the following term[s]: [Insert details of terms relied upon.] [Sample text for the implied term of mutual trust and confidence (EXAMPLE A) is provided at paragraph 2.1 below.] 2.1 [an implied term that the Respondent would not, without reasonable and proper cause, conduct itself in a manner likely to destroy the relationship of trust and confidence between employer and employee; and OR [Sample text for an express term relating to pay (EXAMPLE B) is provided at paragraph 2.2 below.] 2.2 an express term that the Respondent would pay the Claimant an annual bonus every July based on the performance of the Claimant’s team in the preceding tax year; and] [Sample

[Insert in para 8.2 of claim form ET1:] 1 The Claimant was employed by the Respondent [at its [insert details, eg London office]] as a [insert job title, eg receptionist] from [insert date] until [his OR her OR their] dismissal on [insert date]. The Respondent is [insert brief description of the nature of the Respondent, eg a global law firm]. [ The contract of employment ] 2 [The Claimant’s contract of employment included a notice period of [insert details, eg three months].] 3 [Insert details of any other relevant contractual terms, eg ones that refer to absence management rules or procedures of relevance to the issues in question.] [ The Respondent’s absence management policies and/or procedures ] 4 [Insert details of any relevant policies or procedures and any specific provisions within them that are relevant to the claim that the dismissal was unfair.] The