A proposed fundamental shake-up of the civil courts structure in England & Wales while welcome in its overall intention should draw a distinction between commercial and workplace disputes, says the Employment Lawyers Association (ELA).
ELA has appealed for this distinction to be understood in its response to Lord Justice Briggs Interim Report on the Civil Courts Structure. While employment law disputes are on the fringe of the main Review, ELA is concerned to highlight the very different nature between employment and other civil disputes. Briggs LJ’s interim report proposes introducing of an online court for lower value disputes different in style to the current adversarial system, with the parties representing themselves and judges becoming more inquisitorial in reaching an outcome.
The report also envisages the creation of a unified civil court and the introduction of case officers to handle much of the administrative work currently undertaken by judges.ELA, with some 6,000 members nationally, represents the views of lawyers who act for employers and for employees. ELA’s challenge to the limited references to employment law disputes in Briggs LJ’s report arise from deep-seated concerns that such disputes and the position of the Employment Tribunals Service should be matters for a separate, detailed consultation. Change should not occur by default as part of a wider civil courts reorganisation.
Joanne Owers, Partner at Fox Williams LLP and Paul McFarlane, a Partner at Weightmans LLP, who co-chaired ELA’s response to Briggs, say: “It is imperative that detailed consideration is given to the extremely complex and important issue before any decisions are taken to abandon the existing system of the Employment Tribunal Service having a ‘separate identity’ with the suggestion that there is no longer a requirement for such a separation and essentially nothing to distinguish cases emerging from the workplace from routine commercial disputes.”
ELA acknowledges that the introduction an online court for lower value claims could offer greater access to justice for individuals and would be improved by being less adversarial than the current system. But ELA questions the suitability of an online court for employment law cases which have added sensitivity because of the nature of the employer/employee relationship; can be imbalanced where a single unrepresented employee is facing the better-resourced employer, and where issues can be extremely complex. Employment Tribunals with specialist judges remain, in ELA’s view, the best means of resolving employment law cases fairly. If there were to be a decision to press ahead with certain employment cases being run in an online court, then ELA stresses the need for the focus and safeguards afforded by tribunals to be mirrored in the online system.
Briggs LJ’s interim report does not focus on Employment Tribunals as such but ELA’s concerns have been raised by “many negative and subjective references”, by questions about where the Tribunals and the Employment Appeals Tribunal should sit in the overall courts structure, and also by mention of replacing lay people with assessors. While Briggs LJ appears uncomfortable with where Employment Tribunals stand in the system at present, ELA very firmly endorses his underlying view that questions about the future should be subject to significant further work and consultation and need to take stock properly of the history behind the existing set-up. “There are clearly far-reaching decisions to be made here which fall outside the scope of the civil courts structure review and require a separate enquiry,” says ELA. In particular, ELA says arguments around administrative convenience and cost-saving suggested by encouraging integration of tribunals into the civil courts structure ignore the benefits, function and ethos of the employment tribunal system. Anticipated costs savings from making changes also have yet to be demonstrated.