Radical reform needed of employment tribunals

The employment tribunal system is in urgent need of a complete overhaul, proposals put forward by the Law Society have said.

There are fears the complexity and cost of using the system - including the introduction of employment tribunal fees in 2013 - has discouraged the bringing of legitimate claims and the defending of wrongful accusations.

The Law Society has offered up a new and 'efficient' employment tribunal structure where all disputes would be dealt with in a 'single jurisdiction' consisting of four levels.

Simple claims, such as handling unpaid wages, would be dealt with on a paper basis in level one, while more complex cases, such as multi-strand discrimination cases, would be heard by an experienced judge at level four.

In addition, alternative dispute resolution (ADR) and the use of 'modern technology' would be made available.

The Law Society's president, Jonathan Smithers, argued that neither employees nor employers should be discouraged from bringing legitimate claims or from opposing them because of the cost or difficulty associated with the process.

'Our proposed system would be easy for the public to use, as there would be a single entry point, and make sure that cases are dealt with in the most appropriate way,' said Smithers.

'The single jurisdiction would increase awareness of different types of ADR methods, including the benefits of solving the dispute before the hearing.'

The Ministry of Justice (MoJ) is conducting a review into the tribunal fees regime following a sharp decline in the number of claims brought by workers.

'MoJ statistics show that since the introduction of employment tribunal fees the amount of disputes proceeding to the tribunal has collapsed by over 60 per cent,' remarked Smithers.

'The £1,200 that a claimant must pay for most types of cases is close to the average monthly salary, putting the tribunal well beyond the reach on many people, particularly those on lower incomes.

'This could mean that bad employers are less likely to face challenge. Employment tribunal fees have widened the gap in the "two nation justice system" identified by the Lord Chancellor.'

The Scottish government has already pledged to scrap the controversial tribunal fees under new powers conferred on it in the Scotland Bill, leading to the suggestion this may create a two-tier justice system for workers in the UK.

Smithers added that access to justice should not be limited to those with financial means.

'We believe that, by having a better system, the MoJ can make savings, which means they can scrap the current fees arrangement, and ensure that all employees can once again enforce their employment rights.'

Failing the principles of justice Kevin Poulter is SJ's editor at large and a legal director at Bircham Dyson Bell @kevinpoulter ‘There is little doubt that the current employment tribunal system is failing employers, employees, and principles of justice. The introduction of fees in July 2013 has already proven to impact directly on the most vulnerable workers, including the low paid and those being discriminated against. What’s more, the time, resource, and money that must be committed by an organisation to defend claims, however unfounded, will often see them settle for a smaller financial sum. ‘The idea of a tiered system has, in part, already been taken into account under the current system, with two fee levels and a move to have judges sitting alone in the majority of hearings. That said, more cost-effective case management for lesser valued claims and those which can be determined without extensive witness evidence should prove to deliver outcomes swiftly and with more certainty. This, I am sure, would be welcomed. ‘Some of the reduction in tribunal claims can be attributed to the ACAS early conciliation process, which is compulsory for all, would be claimants before a claim is issued (and fee incurred). If other types of ADR are to be considered, much could be learned from the early conciliation service, which has saved many employers time and money and delivered satisfactory results for aggrieved employees. ‘Although the proposals from the Law Society will now be subject to much scrutiny and no doubt criticism, they are a good starting point for further discussion and debate. Any change must not only be fit for purpose now, but for the changes in working practices forecast in the years to come.’