Changes to Tribunal rules, including allowing an Employment Judge to hear a claim alone without lay panel members, took effect from 12 December 2024, following a brief consultation by the Department for the Economy.

The DFE has recently published amendments to Tribunal Rules of Procedure via the Industrial Tribunals and Fair Employment Tribunal (Constitution and Rules of Procedure) (Amendment) Regulations (Northern Ireland) 2024. It makes changes to the existing tribunal rules which are intended to reduce the administrative burden for the current tribunal system and ensure that workers and businesses can resolve their disputes quickly and efficiently. We have summarised the main changes and how they may impact tribunal cases in Northern Ireland below.

How are Tribunal cases heard in NI now?

Northern Ireland differs from GB in that it has two tribunals for employment-related claims - the Fair Employment Tribunal, dealing with discrimination on grounds of religious belief or political opinion, and the Industrial Tribunal, dealing with other types of discrimination and employment claims that would be dealt with by an employment tribunal in GB.

These are both administered by the Office of the Industrial Tribunals and the Fair Employment Tribunal and are governed by Industrial Tribunals and Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2020. 

The only substantive difference is that the Fair Employment Tribunal and the Industrial Tribunals draw their members from differently constituted panels. In both cases, however, the Tribunal is made up of a panel consisting of an Employment Judge and one or two lay members appointed due to expertise in management or trade union activities. 

What is changing and when?

The DFE launched a brief consultation in Summer 2024 on a number of proposed amendments to the 2020 rules. 

Of the proposals, one of the most significant was for an Employment Judge to be able to sit alone ‘in prescribed circumstances’, meaning, the lay members of the tribunal, (a key feature of industrial tribunals), could be removed in some cases.

The 2024 Amendment Regulations were made on 21 November 2024 and came into effect on 12 December 2024 adopting most of the changes proposed in the consultation, including this change to the composition of tribunal panels.

However, no guidance has been issued as to the circumstances when it will be considered appropriate for a Judge to sit alone or when a full panel must be deployed, and we await further information as to how this will apply.

What is the position in GB?

In GB, Employment Judges are able to sit alone to hear claims relating to breach of contract and unlawful deduction from wages.  The rules were changed in 2012 to allow Employment Judges to sit alone in unfair dismissal cases as well, and the vast majority of unfair dismissal claims are now heard by a judge alone.  However, this does not apply to Northern Ireland.

In July 2024, the Senior President of the Tribunals in GB issued a Practice Direction which now permits Employment Judges to sit alone in all cases. 

Going forward, for all substantive hearings in the GB Employment Tribunal (and Employment Appeal Tribunal) on or after 29 October 2024, an Employment Judge will decide, having regard to the interests of justice and the overriding objective, whether the case will be heard by a panel or an Employment Judge sitting alone. The exception appears to be where a case is undefended, which will be dealt with by an Employment Judge alone by default. 

A category by category approach was not considered appropriate because cases within a category are not all alike. Presidential Guidance on this change sets out various factors relevant to panel composition that judges should consider when making their decision, which include:

  • The views of the parties (which are not determinative)
  • Whether the issues to be determined at the hearing require an understanding of contemporary workplace norms, practices and challenges, to which the members can contribute their experience. This may be so where the issues require an assessment of the reasonableness of the actions or beliefs of the employer, or the employee and the members’ experience may add significant value to that assessment.
  • On a practical level, the availability of members to sit on the case (which may correlate with the length of the hearing) and the risk of delay to the case if a full panel were to be used.

What else is changing?

Most other changes set out in the consultation deal with more administrative issues and will be adopted, including:

  • Providing, in certain circumstances, for two or more claimants to make their claims on a single claim form and two or more respondents to submit a response on a single response form
  • Reasonable notice be given to the parties of the date of a final hearing and that any final hearing may be listed with less than 14 days’ notice upon consent of the parties
  • Allowing the issue of default judgments and the recording of judgments on the Register
  • Permitting the Tribunal to consider whether to make a costs order where there has been a postponement or adjournment following a late application by one of the parties. 

Whilst it was hoped that a proposal to increase the maximum amount of a costs order to £20k (currently £10k) may be considered, this has not made the final amendments. The current limit, in place for many years wholly fails to reflect the cost involved in some complicated cases, where the Tribunal concludes that an award of costs is appropriate.

What does this mean for Tribunal hearings in NI?

In short, we don’t exactly know yet. No further guidance has been issued for the changes to the Regulations in Northern Ireland, but we assume that we are likely to take a similar approach in GB.  
Undoubtedly, the tribunal system in Northern Ireland is overloaded. Tribunal cases are increasing and delays in securing a date for hearings are lengthening. Changes need to be made to facilitate hearings and ease the burden on the tribunal system, and there are likely to be many smaller value claims where it will be in the interests of all parties that an Employment Judge should sit alone to speed up the process and be a proportionate means of dealing with claims. 

However, the inclusion of lay members is a central feature of tribunals, and arguably reducing their involvement may affect the balance and overall justice of the tribunal system. There are concerns that Employment Judges sitting alone reduce diversity and inclusion of employment tribunals, and lay members undoubtedly bring a depth of practical experience from both sides of the employment relationship which are vital to issues to be determined in tribunal cases. 

As identified in the GB Presidential Guidance, determining standards of ‘reasonableness’ in employment related decisions (such as in unfair dismissal claims) is central to many employment claims, and require an application of fact-based knowledge and experience of the workplace. It is also possible that decisions made by a judge alone could be more susceptible to scrutiny for potential bias and/or there may be potential for an increase in appeals.

Guidance on the application of this new rule is therefore essential.

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