Decisions based on documents alone would cut costs of simple claims
The impact of tribunal fees on access to justice has been widely discussed but the debate about employment tribunals goes further than that, with their whole role and future composition now under consideration.
Earlier this month the Law Society, representing all solicitors in England and Wales, published a consultation paper arguing that the employment tribunal system is not working as well as it could. The paper, Making Employment Tribunals Work For All notes that while fees represent a significant hurdle for claimants, the complexity and cost of responding to claims is a burden for employers. The paper suggests it may be time for a single employment jurisdiction to replace the current system, which requires most employment claims to be lodged at an employment tribunal, although some can only be heard in a county court or the High Court.
Proposals
The main ideas floated by the Law Society are that:
- all employment law disputes should be dealt with in a single jurisdiction, which should become a court, not a tribunal, and consist of four levels;
- claims should be dealt with flexibly, depending on their intricacy and the financial stakes involved;
- simple cases, such as handling unpaid wages claims should be dealt with on a paper basis (level 1);
- more complex cases, such as multi-strand discrimination cases or those involving restrictive covenants, should be heard by an experienced judge (level 4);
- the whole regime should encourage arbitration or mediation;
- all equality cases (including goods and services cases) should be dealt in a single jurisdiction.
Comment
A recent consultation by the Employment Lawyers Association (ELA) of its 6000 members found that most agree that low value claims have been worst affected by the introduction of fees, which have made bringing such cases far too expensive for many claimants. The Law Society proposes that these cases should be dealt with on paper alone, suggesting it would be easy for claimants to use such a system. It would certainly be a cheaper system but the proposed solution may well be biased in favour of employers because of the better resources they generally have at their disposal to deal with a case using documents alone.
At the next level, the Law Society suggests a form of inquisitorial hearing where, although parties may appear, all of the questioning is conducted by a judge, without any cross-examination. The decision to select this level of hearing would be up to a new body called “the allocation team”. Quite where the resource for these civil servants is to come from in times of austerity is not mentioned. Oddly, the Law Society also fails to mention whether there is a role for claimants’ representatives - lay or otherwise - at this level.
In the mainstream of unfair dismissal and discrimination cases, the Law Society promotes more mediation and early neutral evaluation, which is where a judge at a preliminary hearing provides an opinion on the merits of a claim to encourage settlement or mediation. If adopted, this proposal would result in two judicial hearings for any case where the parties want a conventional resolution. The Law Society wants to remove the fee for the process of judicial mediation but a larger problem is the quality of mediation provided by employment judges. Only 24 per cent of ELA members responding to the consultation thought the existing system worked very or fairly well, while 40 per cent thought it did not work well at all.
By contrast, the suggestion of a single regime to hear all types of employment cases, including large contract claims and restrictive covenants, is in keeping with the views of ELA members. Some 64 per cent thought this would be an improvement on the present arrangements.
However, some of the Law Society’s other proposals are controversial, particularly the one that the new single jurisdiction should be a court, rather than a tribunal. The idea that lawyers alone understand the workplace will surprise many lawyers - let alone the HR community.
Stephen Levinson is consultant solicitor at Keystone Law and a member of the legislative and policy committee of the Employment Lawyers Association
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