Employment tribunal reform should be handled with care

The unique position employment tribunals enjoy within the judicial system must be protected under government plans to radically modernise the justice system, lawyers have argued this week, while also calling for a review of the controversial tribunal fees in employment cases.

The Employment Lawyers Association has once again raised the issue of employment tribunal fees, which have seen the number of cases reaching the tribunals plummet since their introduction in 2013. The ELA said it was ‘extraordinary’ a review of the issue has yet to be published, despite the group being told ‘many months ago that it had been completed’ by the government.

‘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,’ said Richard Fox, a partner at Kingsley Napley, and Joanne Owers, a partner at DAC Beachcroft, in a joint statement.

The Ministry of Justice’s ongoing drive to transform the courts system includes 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.

While the ELA is keen for the tribunal system to embrace the advantages an online court could offer employers and employees, it says any modernisation must ensure the system remains fully accessible to all, including those who are disabled and who may otherwise find it difficult to access the web.

The ELA highlighted concerns over access; ability to pursue a case online; lack of professional support to advance a case; 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,’ said Fox and Owers, who jointly chair the ELA working group responding to the MoJ/BEIS consultation.

The group, which is comprised of some 6,000 lawyers, says 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 both the perspectives of employer and employee.

‘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,’ said the joint chairs. ‘The rapidly changing nature of workplaces makes this even more important.’

‘Workplace disputes are not like civil court money disputes,’ they continued. ‘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.’

The ELA has also urged that any legislative changes to the Employment Tribunals Act 1996 must retain discretion for employment judges, rather than unqualified caseworkers, to continue to have the principle role in early case management, 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 judicial functions to caseworkers, the association highlighted the need for detailed legal and procedural knowledge to avoid a rise in appeals. It also pointed 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,’ said Fox and Owers.

John van der Luit-Drummond is deputy editor of Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD