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Definitions and dividing lines in the Employment Tribunals Rules of Procedure

By John Macmillan

The current series of Judicial Pension Scheme claims have raised two interesting points under the most recent Employment Tribunals Rules, introduced in July 2013. Although ultimately neither required determination, the issues highlighted are worth exploring.

The first issue is where the dividing line between preliminary and final hearings should fall. Rule 57 defines a final hearing as one “at which the Tribunal determines the claim or such parts as remain outstanding following the initial consideration (under rule 26) or any preliminary hearing.” The problem is the seemingly very broad definition of “preliminary issue” being one of the things which a tribunal may determine at a preliminary hearing.

A preliminary issue in the context of a complaint means “any substantive issue which may determine liability…” (r. 53(2)). Again, the definition of “substantive” is not entirely clear. It is a word much misused by the drafters of previous iterations of the Rules but is likely to mean something which exists independently of the main issue in the proceedings. So (as per one of the examples in r. 53(2)), in a complaint of unfair dismissal, whether there has been a dismissal or not would be a substantive issue. But then, so it would appear, is a dispute over the reason for the dismissal, an issue historically always dealt with as part of the final hearing. In this context the problem is largely academic except in those very rare cases where a full tribunal will sit for the final hearing. It remains potentially an area of practical difficulty in discrimination claims.


In the current Judicial Pension Scheme cases, three principal issues have fallen for determination at a series of hearings that all parties have agreed to define as preliminary hearings. The first is whether a claimant holding a particular fee-paid judicial office is engaged in the same or broadly similar work as a named comparator who is salaried holder of another, sometimes quite different, judicial office. That looks like a perfectly bona fide preliminary issue as the comparator hurdle must be cleared in order to demonstrate entitlement to bring the proceedings.

The next logical question would then be whether there has been less favourable treatment, e.g. in the payment of fees for attending training. This too seems to have a life independent of the main question, namely whether there has been a breach of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

The third question, whether any less favourable treatment has been objectively justified, seems – instinctively – much less ripe for preliminary determination, although in these cases it has been treated as a preliminary issue without objection. Based on these decisions, my understanding is that the drafting of the definition of “preliminary issue” is deliberately wide.

A second point raised by the recent JPS claims is how the costs rules should be applied to lead cases (r. 36). Rule 74(1) defines costs in terms of those incurred by or on behalf of the receiving party who – in a case to which r. 36 applies – appears to be the lead claimant. But in some cases, many people may have contributed to a fighting fund, while the lead claimant’s contribution to that fund may have been negligible. This difficulty is starkly demonstrated by the question of fees where a multiple has come together as the result of many claimants presenting their own claims without reference to each other over a period of time. In this case, each would incurr a separate issue fee. While the problem over legal costs might be resolved by an agreement between all the claimants – in which the lead claimant agrees to take primary responsibility for the costs subject to an indemnity from the related case claimants – such situations are likely to rare and would not seem to be applicable to the fees incurred by individuals in any event. There is a similar problem where the respondent seeks costs against a lead claimant.

However, r. 36(2) may provide a solution. It seems likely that the costs could and probably should be treated as one of the common or related issues in the case. If so, then the decision made is binding on all the parties in the related cases. Careful wording of the judgement would be required, but there seems little doubt that an order that the respondent pays the lead claimant’s tribunal fees would apply to the fees of all other claimants. Similarly, a judgement that the lead claimant pays the respondent’s costs would be enforceable against all claimants. Whether the judgement should be for a full or proportionate amount should then be a matter for determination on the facts of each case. The obvious problem then becomes one of enforcement.

John Macmillan was formerly a Regional Employment Judge, East Midlands Region, and is now a fee-paid Employment Judge. He is the author of Blackstone’s Guide to the Employment Tribunals Rules 2013 and the Fees Order.

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