Amendments to the EAT Rules
Thanks to Claire Darwin
of Matrix Chambers for preparing this case summary.
The 1993 EAT Rules have been amended in the Employment Appeal Tribunal (Amendment) Rules 2013
, ahead of the introduction of the government's new fee regime for enforcing employment rights. The amendments come into force on the same day - 29th July 2013.
There are 4 key changes and 1 key omission:
1. The removal of the right (pursuant to rule 3(8) of the old EAT rules) to submit a fresh Notice of Appeal within 28 days of the original Notice of Appeal being rejected by an EAT Judge (at the 'sift stage') on the grounds that the appeal does not have reasonable prospects of success.
2. The end of the automatic entitlement to an oral hearing (a so-called 'rule 3(10) hearing') after the sift stage, if the Appellant wishes to challenge the assessment of an EAT Judge that the Notice of Appeal discloses no reasonable grounds for bringing the appeal. Now if an EAT Judge considers that an appeal is "totally without merit" he can order that a party is "not entitled to have the matter heard before a Judge" at a rule 3(10) hearing.
3. A similar amendment in respect of cross-appeals, again if an EAT Judge considers that the statement of grounds of cross-appeal is "totally without merit".
Given that the law reports are full of appeal cases which, although ultimately successful, were initially rejected at the sift stage by an EAT Judge, the above three amendments are deeply troubling.
4. A new mechanism for challenging a decision by a Registrar to strike out your appeal on the basis that you haven't paid your EAT fee, when in fact you have paid it but the new "centralised processing facility" hasn't informed the EAT that you've paid it, or has lost your file etc. Appellants will be able to apply endlessly (there is no time bar or restriction on the number of times you can apply) to a Registrar to have their appeal reinstated pursuant to the new rule 17A(2).
5. However, whilst the new rule 34A(2A) provides that the EAT can order a Respondent to a successful appeal to reimburse the Appellant in respect of the EAT fees, the rules do not provide for a situation in which it is not the parties fault that they are in the EAT, but the fault of the Employment Tribunals Service because the parties had a dud Employment Tribunal. In these cases, the parties will simply have to try and recover their wasted costs and fees directly from the Ministry of Justice.
Presumably the EAT will amend the 2008 Practice Direction in the near future, so that it is consistent with the amended Rules.