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The Demise of the Employment Tribunal?

By Andrew Sugarman and Adam Gould

Introduction

In 2013, the Coalition Government introduced fees for those wishing to bring proceedings in the Employment Tribunal and Employment Appeal Tribunal. That, perhaps together with other changes including limiting the amount of compensation unfairly dismissed employees could recover, led to an enormous reduction in claims, somewhere in the order of 60% - 70%. The last 2 years have seen an average of just over 18,000 claims nationally. There has been no commensurate increase in the success rate of claims, giving lie to the suggestion that fees deter unmeritorious claims.

The Government is now embarking upon further “radical” reform with the purpose of providing “support [to] citizens to present their own cases simply and to obtain justice more swiftly; to reduce complexity in language, process and systems and to reduce the costs of the tribunal system to taxpayers”. A cynic might argue an analysis of the proposals indicates the latter appears to be the priority.

Reforming the Employment Tribunal System

The Governments Consultation on “Reforming the Employment Tribunal System” has got to be the fastest on record! It commenced in December 2016 was all done and dusted within 3 months: proposal, consultation and publishing of the Impact Assessment.

The proposed reforms can be split (broadly) into 3 categories.

1. Increased Digitisation The Government wish to “digitise the end-to-end process, facilitating online interaction between the parties and tribunal […] allowing users to engage with the tribunal at times and locations convenient to them.” However given that 90% of claims are already submitted online and much communication is already by email, the heart of this proposal appears to be a desire to see fewer “live” hearings and more “online” and “virtual” hearings.

2. Use of “Tribunal Case Workers” instead of Judges It is proposed that lay Case Workers will deal with certain aspects of judicial decision making, for example procedural issues and the timeliness of applications and amendment. Of course, the determination of procedural issues is often of huge importance in defining the scope, shape and method of substantive determination.  

3. Reduction in use of lay panel members
The Government suggests that the automatic use of non-legal panel members in certain cases without considering the needs of the case is no longer necessary they ought to be used only when required by the demands of a particular case.

The Impact Assessment

The devil is often in the detail and the proposals were short on that. However, the devil may well be in the Impact Statement

The Government anticipates the effects of reform will be that: • All case management hearings will be done virtually;

• 80% of all Preliminary Hearings will be done virtually, with only 20% face to face (“live”);

• 90% of Remedy Hearings/Cost Applications will be done virtually.

In relation to final hearings, a distinction is made based on what “track” a case falls into. HMCTS categorise cases as follows: • fast track - simpler cases (41% of all cases);

• standard track - slightly more complicated; must include unfair dismissal or a “related” complaint (34% of all cases);

• open track - the most complicated; must include discrimination or “disclosure type jurisdictional complaint” (23% of all cases).

The Government anticipates that: • 66% of all fast track/no track cases will be dealt with online or by email - that is nearly 5,000 of the remaining 18,000 cases. 17% will be dealt with virtually and only 17% “live”;

• 50% of all standard and open track cases will be dealt with virtually, that is just over 5,000 of the more complicated cases p.a.

The “shift away from the conventional format” will mean “estates savings” i.e. “some hearing centres to be closed”.

The Government anticipates the combined effect of the proposals will result in a further staggering 34% reduction judicial hearing time and “we have assumed there will be a 75% reduction in the number of panel members sitting days in ETs.”  


Comment

Increased digitisation of the claims process up to, and at, a hearing is a good thing. However even with a perfect platform, the move to such widespread “e-justice”, to be dispensed not only by judges but lay case workers on the papers, is concerning. Will those involved in the 30% of all cases dealt with by email feel like they’ve had a fair “hearing”? How can 50% of more complicated cases, including discrimination and whistleblowing cases, be fairly dealt with at a virtual hearing, perhaps even by telephone?

There is an implicit presumption that many litigants would prefer to pursue their claims without the assistance of a lawyer and without meeting a judge, and that will be more “efficient”. That is un-evidenced and almost certainly unsound. Most litigants, in our experience, regard a fair and full hearing as more important than a quick, cheap one. Moreover, it is difficult to see many judges welcoming the idea of more litigants in person arguing their cases in writing.

Developments which increase efficiency, simplicity and access to justice are of course to be welcomed. The better use of technology in tribunals is to be encouraged. However, investment in technology is just that. These proposals have the purpose of saving money. The danger is they will do that by sacrificing the quality of justice on offer. It is difficult to see how less judicial time, fewer lay members, fewer hearing centres and only a minority of cases actually dealt with by a judge face to face with the parties at a hearing, can be said to be a change for the better.

Parklane Plowden’s employment team are described in the Legal 500 (2016) as “The go-to chambers for employment law.”

Article by Andrew Sugarman and Adam Gould

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