All Change for Employment Cases?!

By Sarah Hornblower 

There have, over the years been a number of reviews of the tribunal system- ‘Justice’ in 1987, the green paper ‘Options for Reform’ in 1994, ‘Fairness at Work’ in 1998, the Leggatt Report in 2001, the ‘Employment Tribunal System Taskforce’ in 2002 which resulted in the Gibbons Report in 2007, and finally ‘Resolving Workplace Disputes’ in 2011. Prompted by the President of the Tribunals in England and Wales, the Law Society published a ‘new look’ in its consultation paper, which came out in September.

For those of us still reeling from the significant decline in the number of cases being litigated in the employment tribunal since the introduction of fees and early conciliation over the last couple of years, the significant changes proposed may appear more like knee-jerk reactions rather than carefully considered proposals, but give them chance it is still only a consultation paper. 

The proposals envisage the biggest overhaul and change to the tribunals system since its inception, and a nearing to the Single Family Court. It is proposed that one court/tribunal (as it has not been determined which model of operation ought to be adopted) should deal with all matters of employment law and the associated and ancillary applications. 

If that were to be the case then surely the forum would have to be a court because the tribunal would otherwise continue to lack the necessary inherent jurisdiction to deal with matters such as injunctive relief, contempt of court, or high level costs assessments.

The consultation document asks what role lay members would have in such a setting, and whilst it is easy to answer: none; it must be remembered that lay members are the hallmark of our current system and perhaps the necessary panacea to claims of bias.

It is also remarkable that this one stop shop would not only deal with ‘employment’ related matters but all ‘equalities’ matters- i.e. general civil claims currently before the county court in matters as diverse as goods and services or education and property.

The proposed new structure would be a four-tier approach whereby cases are allocated according to type of case: tier one for determination on paper only, tier two an inquisitorial hearing without cross examination, and tiers three and four being more akin to the current hearings.

Having read the consultation document I have the following concerns:

• Whilst I admire the desire to speed up and reduce the cost of the current system, I am worried about the claims proposed to be dealt with in tier 1. We all know of Wages Act claims that contained the most complex and legally difficult arguments, which were won or lost on the basis of the evidence at tribunal. To lump all of these together as being appropriate for a determination on the papers is in my view a potentially dangerous move.
• Moreover, tier 2 claims would also not have the benefit of the rigorous testing by cross-examination.
• Finally, tier 4 seems to open up the nature of work to such an extent that the tribunal staff and practitioners alike would need vast amounts of re-training.

I urge you to read the consultation for yourselves, and to respond to it.