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The proposed changes to Panel Composition in the ET and the EAT – a valuable cost saving exercise, or an erosion of justice?

<!-- wp:paragraph --> <p>Sir Keith Lindblom, Senior President of Tribunals has in recent weeks launched a consultation paper seeking views on the proposals to potentially change the composition of ETs and the EAT, with a view to removing, or further reducing the use of lay members in all but the most complex cases. But what effect, if any, would this change have on the administration of justice?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Employment Tribunals, created in 1964 (and known as Industrial Tribunals until 1998) were initially created to decide appeals against training levy assessments imposed on employers by Industrial Training Boards. Whilst ETs still hear some appeals against administrative decisions, in most respects ETs have changed beyond all recognition in the past 59 years. However, one key component of Employment Tribunals has been its composition; indeed, the use of a panel in both the ET and EAT is of great importance to us as employment lawyers.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The use of lay members, who assist the Employment Judge in the determination of legal issues, but who also provide a lay perspective to issues (when first established the idea was that one non-legal member would have a Trade Union background and the other have a business background) has traditionally given parties the appearance of fairness and access to justice. However, the requirement for a panel of three has been reduced over the years. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Employment judges have been sitting alone on case management discussions, most pre-hearing reviews, and claims relating to unlawful deductions, unpaid holiday pay and redundancy payments for many years. Since 2012 Employment Judges have also been able to sit alone in Unfair Dismissal cases. When this was announced, it was anticipated to save around £3 million per annum in lay members fees and other associated costs. Meanwhile when the EAT was first established, a panel was required for all cases. However, since 2013 the EAT has been composed of a judge sitting alone, with a discretion to sit with a panel. This discretion is only exercised in about 15% of cases.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Now 10 years on, that composition looks set to change yet again. Within the consultation paper, Sir Keith Lindblom, Senior President of Tribunals said that the aim is to create a ‘more efficient and consistent pattern of panel composition’. This would involve reductions in panel size where that is justifiable, and potentially scrapping the system of allowing judges to sit alone for certain types of cases and not for others. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Sir Lindblom is of the view that there no inherent unfairness in a hearing before an Employment Judge sitting alone; equally he appeared to reject any suggestion that a full panel was required for parties to feel that they were getting a fair hearing. He also said that including non-legal members on the panel can affect the length of time involved or extend the time taken to make a decision or judgment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Listing hearings on dates convenient for three members of a panel is also more difficult than where a judge can sit alone (have we not all had a hearing where a panel member has had a holiday or an operation to work around, resulting in an unavoidable further delay in a part-heard case?). One should also bear in mind the fees of panel members; currently £200 per day in the ET and £350 per day in the EAT, plus expenses. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Sir Lindblom cited the use of panels in discrimination and whistleblowing cases as being ‘too broad’ given that such cases often succeed or fail on legal points which panel members may have little knowledge in. He deemed this a ‘wasteful use of hard-pressed resources’ and perhaps many of us cannot argue with his logic. But what about the other side of the coin; what are the advantages of panel members?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Sir Lindblom acknowledged that lay members are more likely to be female (56% compared to judges at 52%), come from ethnic minorities (18%, compared to judges at 12%) and be people with disabilities (11%, compared with judges at 6%). Removing them from hearings could reduce representation of these groups in the tribunal. Equality in the Tribunal is therefore potentially affected, bearing in mind that there is also a higher proportion of people from ethnic minorities among claimants in the ET than in the workforce as a whole. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There is also a sense amongst many lawyers that panel members bring a human touch to a hearing; claimants in particular can feel that their voice is being heard by a lay person rather than a lawyer. As the consultation paper points out, a non-legal member may be better placed to determine an issue such as whether an adjustment requested by a disabled employee was reasonable, than a judge. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whilst the promotion of diversity in the judiciary is highlighted within the consultation paper as being one of the Senior President Tribunal (SPT’s) main strategic objectives, it also points out that ‘it would not be appropriate to pursue that objective by deploying judicial office holders to hear cases in which their expertise is not required’.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>When changes were made to panels for unfair dismissal hearings back in 2012, there was concern that this might be seen to erode public confidence for those seeking to bring claims. However, the consultation paper makes clear that the data shows that these concerns were unfounded. There were 49.036 unfair dismissal claims in 2012/2013, which was slightly higher than in the preceding years. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is therefore argued that trusting the discretion of judges to identify cases where the input of non-legal members would be useful seems to be the correct approach. The SPT therefore proposes that the EAT should remain and the ETs should become, tribunals where substantive decisions are taken by a judge alone by default, with a discretion for the judge to sit with two non-legal members. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There is a further proposal by the SPT that preliminary hearings (which currently have a discretion for a judge to sit with a panel), will have the discretion removed and will always be conducted by an employment judge sitting alone. Interestingly, there is also a proposal to introduce the possibility of a two-judge panel, to deal with particularly complex cases; a system that already exists in various chambers of the First-tier Tribunal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The sense one feels from reading the consultation paper is that whilst there are compelling arguments on both sides, the changes that we have seen in the tribunals and EAT over the past decade or so are likely to continue and that the composition of tribunals will no doubt be changed further. But would this be the right decision? If you have views on the consultation paper, responses to the same have now been extended to 27 April 2023 and can be sent to SeniorPresidentTribunalsOffice@judiciary.uk</p> <!-- /wp:paragraph -->

Employment | ‘Law with Lunch’ Webinar Series | 27 September 2022

<!-- wp:paragraph --> <p>Our Employment ‘<strong>Law with Lunch</strong>’ webinar series of bitesize, lunchtime talks covering the legal issues of the moment are not to be missed.</p> <!-- /wp:paragraph --> <!-- wp:heading {"textAlign":"center","level":4} --> <h4 class="has-text-align-center" id="tuesday-5th-april-2022-12-30-pm-zoom-webinar"><strong>Tuesday, 27th September 2022, 12.30 PM, Zoom Webinar</strong>&nbsp;</h4> <!-- /wp:heading --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center">Barristers and employment specialists&nbsp;<a href="https://www.parklaneplowden.co.uk/our-barristers/sarah-brewis/" target="_blank" rel="noreferrer noopener">Sarah Brewis</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/bethan-davies/" target="_blank" rel="noreferrer noopener">Bethan Davies</a> will discuss</p> <!-- /wp:paragraph --> <!-- wp:heading {"textAlign":"center","level":4} --> <h4 class="has-text-align-center" id="cru-how-it-works-what-benefits-are-offsetable-against-what-damages-common-misconceptions">Common Mistakes in Employment Tribunal Witness Statements</h4> <!-- /wp:heading --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center">--0--</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"align":"left"} --> <p class="has-text-align-left">From the latest procedural tips, these sessions are ideal for busy practitioners who want to enjoy their lunch break while updating their legal knowledge.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>These events are free, and we expect them to be popular, please book early to avoid disappointment. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For further enquiries or to register, please email&nbsp;<a href="mailto:events@parklaneplowden.co.uk" target="_blank" rel="noreferrer noopener">events@parklaneplowden.co.uk</a>&nbsp;&nbsp;</p> <!-- /wp:paragraph -->

Employment law – what will 2022 bring?

<!-- wp:paragraph --> <p>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/sarah-brewis/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Sarah Brewis</span></a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Due to the pandemic many proposed employment law changes have been delayed, however hopefully 2022 will see some of the legislative developments that had previously been postponed finally being introduced.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Employment Bill</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In December 2019 (which now seems like a very long time ago), a new Employment Bill was announced in the Queen’s Speech. The bill will incorporate the changes recommended by the Good Work Plan, which include: a new right for all workers to request a more predictable contract; a single market enforcement agency to help workers enforce their rights and support business compliance; extended protection for workers on maternity, adoption and shared parental leave, including extending redundancy protection to six months following a return to work from maternity, adoption or shared parental leave; a week’s leave for unpaid carers; making flexible working the default where an employer does not have a good reason not to allow it; new legislation mandating that organisations publish their modern slavery statements on a new government registry, and measures to encourage employers to play their part in retaining disabled workers.&nbsp;There was also reference in the briefing notes of the bill to the employment tribunal process being aligned with other tribunals in one unified structure. The aim of this was to address the current backlog of claims in the employment tribunals given that (as I am sure we all can attest), some claims take in excess of a year to reach a full hearing.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whilst some progress has been made on these issues, there is as of yet little progress on the employment bill itself. The next stage, the second reading, is scheduled to take place on Friday 18<sup>th</sup> March 2022.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Workplace sexual harassment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On 21<sup>st</sup> July 2021, the government published its response to the consultation on workplace sexual harassment, which was launched in July 2019. It confirms that the government will introduce a duty on employers to prevent sexual harassment. Employers will need to show that they have current anti-harassment policies in place, together with up-to-date training for their employees. It will also introduce protection against third party harassment, such as customers and clients. The duties will be subject to an ‘all reasonable steps’ defence. It is also possible that the time limit for bringing discrimination claims to the employment tribunal will be extended from three months to six months. A new statutory code of practice will be published to support the duty to prevent sexual harassment, along with guidance for employers.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Similar to the Employment Bill, these legislative changes are likely to be implemented ‘when parliamentary time allows’.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Pay gap reporting</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Since 2017 any employer with 250 or more employees has been required to comply with regulations on gender pay gap reporting. Gender pay gap calculations are based on employer payroll data drawn from a specific date each year (called the ‘snapshot date’). Due to the pandemic, enforcement of the reporting deadline for both public and private sector organisations was extended by six months to 5<sup>th</sup> October 2021. In terms of 2022, the deadlines are expected to revert back to normal timescales (with a deadline for reporting of 30<sup>th</sup> March 2022 and a snapshot date of 31<sup>st</sup> March 2022). For private sector and voluntary organisations the deadline is likely to be 4<sup>th</sup> April 2022, with a snapshot date of 5<sup>th</sup> April 2022.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, unlike the gender pay gap,&nbsp;there is no legal requirement for companies to publish their ethnicity pay gap. A recent report by the Commission for Race and Ethnic Disparities recommended that the practice remain voluntary due to a lack of diversity in some parts of the country. Nevertheless a coalition of workers’ groups has called for ethnicity pay gap reporting to be made mandatory so that employers can better address pay disparities. MPs debated this issue in Parliament on 20<sup>th</sup> September 2021. In the course of the debate the government was told that unless ethnicity pay gap reporting was made mandatory for larger organisations, businesses would struggle to make the progress needed to close the pay gap.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the meantime, some companies are taking it upon themselves to report their ethnic pay gaps. However, just 13 FTSE 100 companies did so in their most recent annual report, according to CIPD (Chartered Institute of Personnel and Development) research. Of those, ten organisations published for the first time, suggesting that greater public scrutiny of race inequalities prompted these employers to act.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Previous CIPD research has found that while most employers (77%) believe that ensuring workforce diversity is a priority, only 36% collect and analyse data to identify differences in pay and progression for employees from different ethnic groups, highlighting the need for mandatory reporting and clear guidance.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whilst the 2020 Black Lives Matter protests led many organisations to publicly condemn racism and discrimination, few have taken steps to voluntarily disclose their ethnicity pay gap, which can play a key role in assessing if and where inequalities exist in their workforce.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As a result many organisations are calling for mandatory ethnicity pay reporting by 2023 and accordingly wise employers may see the sense in doing so before then together with gender pay gap reporting in order to boost workplace equality.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><em>Harpur Trust v Brazel</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On 9<sup>th</sup> November 2021, the Supreme Court finally heard the appeal in the <em>Harpur v Brazel</em>. The Court of Appeal’s decision in the case had upheld the previous decision of the Employment Tribunal and EAT that an employee employed under a permanent contract was entitled to 5.6 weeks leave, regardless of how many weeks of the year were worked. This appeared to lead to an anomaly in that a school employee employed under a permanent contract but only working for four weeks of the year would still be entitled to 5.6 weeks leave. If the appeal is successful the principle of pro-rating statutory holiday entitlement for part year workers will be re-instated.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Although the case was heard back in November, judgment is not expected to be handed down until sometime in early to mid 2022.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:image {"width":150,"height":224,"sizeSlug":"large","className":"is-style-default"} --> <figure class="wp-block-image size-large is-resized is-style-default"><img src="https://www.parklaneplowden.co.uk/app/uploads/2021/09/sarah-brewis-29.jpg" alt="Sarah Brewis" width="150" height="224"/></figure> <!-- /wp:image --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/sarah-brewis/" target="_blank" rel="noreferrer noopener"><span style="text-decoration: underline;">Sarah Brewis</span></a> is an employment law specialist and is known for her sound advice and pragmatic approach to litigation.</p> <!-- /wp:paragraph -->