As we reported earlier this year there has been a drastic drop in the number of Employment Tribunal claims since the introduction of hefty fees to pursue a claim. As the debate rages on about whether these fees limit access to justice it is worth noting there have been other significant procedural changes as well, including a mandatory requirement to go through early conciliation before being able to lodge a claim in the Employment Tribunal, as well as a thorough redrafting of the Employment Tribunal rules. Employment law is an area often targeted for reform by incoming governments, and Tribunals themselves have changed significantly since their introduction in 1971. With a general election approaching next May it is foreseeable that there will be further reform to the Tribunal system in the near future. This article will highlight some of the ideas currently being discussed by employment lawyers in the UK.
Alternative Dispute Resolution
Under our current Government we have already seen a shift towards the use of ADR as a means of resolving disputes. Parties in the past have been encouraged to use Acas (Advisory, Conciliation and Arbitration Service) to help achieve a settlement before the final hearing. It is now compulsory for parties to at least attempt conciliation prior to lodging a claim. Looking forward there is a possibility that this will be taken one step further with parties being required to use trained Acas conciliators at later stages of the Tribunal process as well (e.g. preliminary hearings) to try and resolve matters prior to a hearing.
Another proposal is to involve the employment judge at an earlier stage in proceedings to give a neutral evaluation as to who might be successful based on the current evidence/arguments. In order to keep costs down this could be achieved by the judge just considering the papers. This would not necessarily be a binding decision but could force a stubborn party with a poor case into settling or withdrawing their claim. At the least it would encourage parties to refocus their case and move away from arguments they are unlikely to succeed with. This service could be offered at a reduced cost before a claimant is required to stump up the £950 hearing fee.
Bringing employment claims into one court
At present, breach of contract and discrimination claims can be brought in the County and High Court as well as the Employment Tribunal. A likely reform in the future would be to require all employment related claims to be brought in one employment and equalities court. This could work in a similar way to the single Family Court which exercises jurisdiction in all family proceedings. Likewise, all employment and equality disputes could be held in one national court system too, reducing traffic in the county/high courts and providing clarity to claimants in respect of where their claim should be brought.
An expert panel
Up until a short time ago a panel of one judge and two lay members, one representing industry and one with a trade union background, would sit on Employment Tribunal hearings. This has changed recently, specifically in unfair dismissal claims where a judge will now sit alone in order to speed up the decision making process. Whilst this has had the desired effect for unfair dismissal claims, lay members continue to sit on complex discrimination matters and as a result there has been some thought as to how lay members can be used more effectively and flexibly in the future. One possibility would be to allow a judge to pick a lay member to sit with him not necessarily to serve as a decision maker, but to provide expertise in a particular area relevant to the case (e.g. if the case involves the NHS then the person may have a background in health).
These are just some of the areas of the Employment Tribunal system that could be targeted for reform in the future. With current and future Governments trying to make public money stretch as far as possible whilst under pressure to make the Tribunal system accessible, there may be even more drastic measures taken in the future. It will be interesting to see what reforms are introduced in the coming years – we will of course keep you updated via our events and monthly ebulletins.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).