The double sift process under the draft new ET rules

n his report to the Government following his fundamental review of the ET Rules, Underhill J introduces under the heading “Stronger Case Management” the new sift process, to encourage the “effective use” of  “robust case management”. 

In fact, there will in effect be a double sift process. 

The first sift

Under new rules 10, 11(a) and 16, claim forms and responses will continue to be rejected if, for example, they are on the wrong form or the Tribunal has no power (now referred to as ‘jurisdiction’) to consider them.

What is new is Rule 11(b), enabling an Employment Judge to whom a claim form has been referred to reject the whole or part of the claim form if it “is in a form which cannot sensibly be responded to or is otherwise an abuse of the process”.  I’m sure that every employment lawyer will have seen claim forms that are virtually unintelligible, or contain sprawling narrative with no clear identification of claims or allegations.  The real question is how willing Employment Judges will be to use this first sift stage in such circumstances:

• No doubt we will see presidential guidance published on this (the probability of non-binding presidential guidance on best practice is flagged by Underhill J in his report);
• Where this rule is used, it seems likely that Tribunals will virtually always see an application for reconsideration of the rejection in accordance with new rule 12 (and, likely, some attempt to provide further and better particulars as part of such application);
• I would also expect to see a raft of appeals to the EAT in the first few years after this provision is introduced, considering when/how it is appropriate to use this power.  It will be interesting to see whether the EAT will be willing to uphold Judge’s “robust” use of this power or whether (as sometimes seems to be the case at present) EAT Judges will tend to take a more conservative view of when strike-out powers should be used at the preliminary stage.

I suspect that reality is that Employment Judges will be somewhat wary of using the rule 11(b) sift (which would take place before any response is filed) except in the clearest of cases.

The second sift

In practice, I expect we will more frequently see robust case management orders at the new “initial consideration” or sift stage under new rules 22 – 25.   “As soon as possible” after both the ET1 and ET3 have been filed, an EJ will always now look at the claim form and response to decide what case management directions to give.  Note in particular the following:

1. Under rule 22, the EJ may require any party to provide further information.  This may simply result in more ‘clarify the claims’ type orders.   However, what would be very interesting would be if Tribunals try to use this power to develop the practice currently followed in some regions of pushing the Claimant into identifying, e.g., the 8-12 “strongest and most recent” allegations of discrimination in sprawling discrimination claims (see for example HSBC v Gillespie [2011] IRLR 209).  In practice, such orders frequently lead to pressure on a Claimant only to pursue the identified parts of the claim, and can lead to questions about the right to a fair trial under Article 6 ECHR;
2. Under rules 23 and 24, an EJ can send notice to the Claimant or the Respondent setting out the EJ’s view as to why there are no reasonable prospects of success in relation to the whole or part of a claim/response, and stating that claim/response will be dismissed from a certain date unless notice is received in writing requesting a hearing.   If this power is going to be used robustly, and given that the sift exercise will take place after both sets of pleadings have been filed, it will likely lead to fuller pleadings, particularly by respondents, setting out precisely why it is submitted that there are no reasonable prospects of success, and inviting ETs to use the rule 23 power.
3. Again, I would expect to see presidential guidance on how these powers should be used, and no doubt various appeals to the EAT.