Consultation on changes to Employment Tribunal Rules

Summary

The request sought details on the origin and consultation process for proposed changes to Employment Tribunal Rules regarding cost awards, specifically questioning if they targeted the Sutton v Creechurch Capital case. The Department for Enterprise disclosed the internal decision-making process and consultations but withheld the identity of the initial contact citing data protection exemptions.

Key Facts

• The proposal to amend Employment Tribunal Rules was initiated by the DfE Legislation Manager, Jonathan Clague, after identifying a lacuna in IOM employment law.
• The specific proposal was not communicated to the initial contact (Person A) before the public consultation commenced on 23 April 2018.
• Pre-consultation dialogue occurred between the Legislation Manager and the Attorney General's Chambers, as well as the Costs Assessment Office.
• The Minister of the Department, Mr Laurence Skelly, approved the consultation paper.
• The Department clarified that the proposal does not introduce High Court-style cost awards as asserted in the request.

Data Disclosed

• 27 April 2018
• 23rd April
• 25 May 2018
• Employment Tribunal Rules 2008
• Data Protection Act 2015
• Data Protection Act 2002
• section 25
• schedule 2
• Sutton v. Creechurch Capital Ltd

Exemptions Cited

• Section 25 of the Act (absolutely exempt personal information)
• Data Protection Act 2015
• Data Protection Act 2002 (contravention of data protection principles)

Original Request

There is proposed to be a change to the Employment Tribunal Rules to introduce the ability for the Tribunal to award costs in much the same way as the High Court can award costs. This is a fundamental change and departs from the procedure in England and Wales whereas in the Isle of Man the Employment Tribunal is a costs neutral jurisdiction. The matter came to the attention of Creechurch Capital following a direct communication from the Department. That communication refers directly to the case of Sutton v Creechurch Capital and would seem to indicate that the proposed changes are to specifically cater for Mr Sutton to claim costs at the conclusion of his case. We request information as to the source of this proposed change. What communications were made to the Department suggesting a change? Who was consulted about it before the matter became a matter of public consultation and specifically, what matters have been taken into consideration when producing the consultative paper?

Data Tables (1)

Full Response Text

Freedom of Information Co-ordinator 1st Floor, St Georges Court Upper Church Street, Douglas Isle of Man IM1 1EX

Telephone: (01624) 685375 Website: www.gov.im/dfe Email: steven.tallach@gov.im

Our ref: 455234 25 May 2018

Dear ###

We write further to your request which was received on 27 April 2018 asking for information on the Department for Enterprise’s proposed changes to the Employment Tribunal Rules in relation to costs. Specifically, the relation to the proposal, you asked: “We request information as to the source of this proposed change. What communications were made to the Department suggesting a change? Who was consulted about it before the matter became a matter of public consultation and specifically, what matters have been taken into consideration when producing the consultative paper?" Our response to your request is as follows: In answer to the questions posed to the Department - What communications were made to the Department suggesting a change? The communications made to the Department are subject to the Data Protection Act 2015. However, the Department can go so far as to advise you of the following. 1. A person (A) contacted the Treasury Minister regarding matters relating to the Employment Tribunal. 2. The Treasury Minister referred A to the Department for Enterprise, the Department which is responsible for employment law. 3. There was an email dialogue between the DfE Legislation Manager, Jonathan Clague, and A. 4. Having considered the issue, the DfE Legislation Manager considered there was a lacuna in IOM employment law which could be dealt with by a change to the Employment Tribunal Rules 2008. The specific proposal was made by the DfE Legislation Manager and it was not communicated to A in advance of the consultation which was commenced on 23rd April. “Who was consulted about it before the matter became a matter of public consultation…” There was dialogue between the DfE Legislation Manager and the Attorney General’s Chambers. The DfE Legislation Manager also obtained information from the Costs Page 2 of 3 Officer at the Costs Assessment Office as to general procedures in relation to detailed assessment of costs. The consultation paper was also sent to the Chief Executive of the Department for Enterprise, and the Minister of the Department, Mr Laurence Skelly; the Minister approved the consultation. “…and specifically, what matters have been taken into consideration when producing the consultative paper? " The policy matters are contained within the paper itself. There is the separate question as to whether or not any change to the Rules should apply to the ongoing Employment Tribunal case Sutton v. Creechurch Capital Ltd which is not dealt with in the paper. The DfE Legislation Manager’s view was that the changes could apply to all cases from the date they come into operation. However, the matter was to be left until the end of the consultation at which time advice would be sought from the Attorney General’s Chambers, a review document would be produced (by the Legislation Officer) and the Minister would decide both whether to proceed with the proposal to amend the Rules and, if there were to be a change, whether or not it should apply to any ongoing Employment Tribunal cases. While our aim is to provide information whenever possible, in this instance we are unable to provide the name of the individual who contacted the Treasury Minister as it is absolutely exempt under section 25 of the Act (absolutely exempt personal information). The reasons why that exemption applies are that: • The Department for Enterprise is satisfied that the information amounts to personal data under the Data Protection Act 2002. • The Department for Enterprise is satisfied that disclosure of the information would contravene one of the data protection principles, namely that the Department for Enterprise can only disclose the information where it would be fair, lawful and meet one of the conditions in schedule 2 and in this case, none of those conditions have been met. In relation to the other points raised, some of the assertions in the question are incorrect. “There is proposed to be a change to the Employment Tribunal Rules to introduce the ability for the Tribunal to award costs in much the same way as the High Court can award costs.” This is not correct. As is pointed out in the consultation document - “It is important to highlight that the proposal would not - • alter the unassessed costs limit of £500; • lower the conduct threshold for the award of costs. Rule 32(2) would continue to provide that, with some exceptions, “the Tribunal or Chairman shall not normally make a costs order in any proceedings” . It is expected that the proposed amendment would be used extremely seldomly, where there were unusual circumstances to a case, as provided by Rule 32(3) and (4).” The question also states - “This is a fundamental change and departs from the procedure in England and Wales whereas in the Isle of Man the Employment Tribunal is a costs neutral jurisdiction.” This again contains assertions which are incorrect- Page 3 of 3 • This is not a fundamental change bearing in mind that it is expected the proposed new power would be used very infrequently. • The proposal doesn’t depart from the procedure in England and Wales but, if implemented, would actually bring the Island into closer alignment as Employment Judges may already assess costs at Tribunals in England and Wales. • The status of the Tribunal as regards costs neutrality would remain the same. Please quote the reference number 455234 in any future communications. Your right to request a review If you are unhappy with this response to your freedom of information request, you may ask us to carry out an internal review of the response, by completing a complaint form and submitting it electronically or by delivery/post. An electronic version of our complaint form can be found by going to our website at https://services.gov.im/freedom-of-information/Review . If you would like a paper version of our complaint form to be sent to you by post, please contact me and I will be happy to arrange for this. Your review request should explain why you are dissatisfied with this response, and should be made as soon as practicable. We will respond as soon as the review has been concluded. If you are not satisfied with the result of the review, you then have the right to appeal to the Information Commissioner for a decision on; 1. Whether we have responded to your request for information in accordance with Part 2 of the Freedom of Information Act 2015; or 2. Whether we are justified in refusing to give you the information requested. In response to an application for review, the Information Commissioner may, at any time, attempt to resolve a matter by negotiation, conciliation, mediation or another form of alternative dispute resolution and will have regard to any outcome of this in making any subsequent decision. More detailed information on your right to a review can be found on the Information Commissioner’s website at www.inforights.im. Should you have any queries concerning this letter, please do not hesitate to contact me. Further information about freedom of information requests can be found at www.gov.im/foi. I will now close your request as of this date. Yours sincerely I will now close your request as of this date.

Yours sincerely