It wouldn’t happen in professional football. There you are as coach, carefully psyching up your team to a nerve-jangling peak of readiness in the dressing room when one of the match officials trots in to tell you that the other side would actually rather come back and do it in three months, if that’s OK by you?

Late or repeated applications for adjournments by the other party in Employment Tribunal proceedings can have a similar effect (though depending on your own state of preparation, that impact may be either teeth-grinding frustration or hysterical relief) and BIS has now issued a consultation paper on measures to limit them.

The full paper is now available online, but its main points are:-

  • that no party should generally be allowed to postpone hearings in its case (including preliminary hearings) more than twice;
  • that applications made less than seven days before the hearing in question should only be granted in exceptional circumstances;
  • that if a postponement application made within that time is granted, the Tribunal should be obliged to consider a costs order against the person making it; and
  • that these rules do not apply to adjournments necessitated by something done or not done by the Tribunal or the other side or where both sides agree and the Tribunal thinks the adjournment may lead to a settlement.

All this sounds superficially very sensible, but ultimately you are left with the nagging feeling that none of this really requires amendments to the Employment Tribunal Rules and that the proposal is in fact empty electioneering. What an unworthy thought. However, consider the evidence:-

  • The consultation paper begins with an assessment of the size of the issue. In the two years to March 2013, it says, there were some 67,750 postponements of Tribunal hearings. My word, what a colossal number, you think. However, although the paper does not say so, that was out of nearly 380,000 claims, so in fact represents a postponement in less than one in five cases. If even I can find the statistics to March 2014 on the internet, you must wonder why they were not used. Then we note the steep drop-off in Tribunal claim numbers since the introduction of fees in July 2013, making the 67,750 number no longer remotely representative of the position in 2015. If you are allowed two postponement applications per case before some of these proposals apply at all, the number of cases to which that part of the new rules would actually apply must statistically be negligible.
  • One of the principal drivers for the proposals is stated to be the length of time that Tribunal proceedings can take. No need is paid in the paper to the shortening in waiting times likely to accompany the dramatic fall-off in claim numbers since the introduction of Tribunal fees and the reduction in the number of cases being heard by a full panel by opposed to a Judge alone. It does have to be doubted whether the need for legislative amendments to shorten hearing delays is really made out in the first place.
  • In addition, the wide discretions afforded to Employment Judges by the Tribunal Rules as they stand already permit the refusal of late or repeated adjournment requests and the award of costs where the other party is prejudiced.
  • Most telling, maybe, is the statistic in the consultation paper that around 80% of application requests are made by Claimants. It is therefore clearly Claimants who would be most prejudiced by this development, not employers. What the paper does not say is how many of those Claimants were professionally represented. My guess is that it would be a relatively limited proportion, since Claimant lawyers know just as well as Respondent representatives of the existing risks of seeking repeated or late adjournments. So in reality these amendments are mostly aimed at the unrepresented Claimant, perhaps the part of the population least likely to take time to scan and understand the fine detail of the proposed Employment Tribunal (Constitution & Rules of Procedure) (Amendment) Regulations 2015.

On that basis, what we have here really is a proposal to make changes which are not necessary to address a problem which barely exists in the form of new law which the relevant people won’t read. If there is genuinely a problem here it should be addressed by firmer steers by Employment Judges, whether oral or written, during the early stages of the case management process, something the parties have no option but to hear or to read. Changing the law in a way invisible to the great bulk of its intended audience is just a waste of time. Call me sceptical but ….