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Tribunal reform – handle with care

Richard Fox and Joanne Owers

Employment Tribunals’ unique place in the judicial system must be protected and reflected under any wider Government plans for justice modernisation and reform. So says the Employment Lawyers Association (ELA) in response to “radical” and “transformational” proposals for change throughout the justice system in the next five years.

The Ministry of Justice (MoJ) has an ongoing mission to drive courts reform including the introduction of online courts and greater use of technology to improve accessibility and achieve efficiencies. In conjunction with the Department for Business, Energy and Industrial Strategy (BEIS) it has been consulting on how employment tribunals can be brought into this overall reform programme. ELA, a non-political group of specialists in employment law with some 6,000 members nationally, is keen for the Tribunal system to embrace the real advantages and improvements that developments in technology have to offer employers and their workers/employees.

But it says any modernisation must ensure the system remains fully accessible to all, including those who are disabled and/or who may otherwise find it difficult to engage with access via the web. The presumption must also be that employment cases are heard by a panel consisting of a specialist judge and lay members having knowledge and familiarity with current and modern workplaces from the employer and employee/worker perspectives. “Fundamental to the Employment Tribunal system is the fact that parties have confidence that their position and the nature of their workplace is fully understood by whoever is to determine their case. The rapidly changing nature of workplaces makes this even more important,” said Richard Fox and Joanne Owers who jointly chaired the ELA working group which has responded to the MoJ/BEIS consultation.

“Workplace disputes are not like civil court money disputes. They can be very emotive and legally complex, particularly when issues such as discrimination are involved.  Jobs really matter to people.  They need to be treated differently in the courts and tribunals’ structure.  It is vital that the Government preserves the distinct nature of the employment jurisdiction within any reformed regime.” ELA has raised again the issue of employment tribunal fees. Since their introduction in 2013, the number of cases reaching the Employment Tribunals has plummeted. ELA finds it extraordinary that an internal Government Paper specifically reviewing this issue has still not been published. This is despite the fact that ELA was told many months ago that it had been completed. “Many litigants will have been unable to make use of the tribunal process because they have either been prevented, or put off from doing so, by the sheer amount of the fee they would incur.”

Online Courts
While encouraging the use of technology, ELA highlights concerns around access (there is a presumption that all people have online access which is not the case); ability to pursue a case online (either because of physical or cognitive impairment); lack of professional support to advance their case (experience shows that litigants in person need assistance from the tribunal to pursue their cases effectively); issues arising where English is not the complainant’s first language; and the imbalance where an employer may be better resourced than an employee.

“We urge the Government to ensure that digitally excluded persons and other vulnerable groups are afforded adequate protection as part of the reforms. We also strongly believe that an online system must not be compulsory for all employment tribunal claims.  Making an online system available but not compulsory can still achieve savings without excluding potential users of the tribunal system.” 

Employment Judges
ELA urges that any legislative changes to the Employment Tribunals Act 1996 must retain discretion for Employment Judges, rather than caseworkers who are not judicially qualified, to continue to have the principle role in active case management of claims from an early stage, including determining what directions are proportionate to the hearing of the claim, and what type of tribunal panel is appropriate to the size, complexity and significance of the dispute. On the scope for delegating some judicial functions to caseworkers, ELA highlights the need for detailed legal and procedural knowledge to avoid a rise in appeals. It also points to the attitude of the increasing numbers of litigants who choose to run their cases by themselves. “Decision making by the judiciary, at all stages of the process, has the confidence of litigants in person, and so the perception of these users needs to be considered carefully to ensure that this is not lost.”

ELA says that the costs of repeated challenges to caseworker decisions, or appeals from judges sitting without lay members, would disproportionately impact small or micro-sized business which do not have the financial or personnel resource to engage in protracted procedural disputes in complex employment claims. “One factor which may prevent multiple challenges is the full tribunal including members from the employer and employee/worker sides of industry. Litigants in person in particular may perceive such tribunals as being able to reach better and fairer determinations.”

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