Employment Tribunal Former President is looking forward and thinking out of the box, says Fox!

5 June 2014

Former President of the Employment Tribunals in England and Wales, David Latham, may be onto something...

Until recently, Judge Latham was President of the Employment Tribunals (ET) in England & Wales.  He was therefore in a position of pre-eminent  importance in the running of our ET system and, in a speech to a gathering at the Law Society earlier this week, he outlined his views as to what should be changed in the future.

“Industrial Jury”

First of all, he plainly feels the days of the so called “industrial jury” are over.  This is the system of having employment cases heard by a legally qualified judge, and by two lay “wing” members, one from the side of industry and one from the union side.  He says in reality these days, the wing members are often from neither side specifically, but rather they are HR practitioners, who come to be appointed for one side or the other.  He suggests that as an alternative, we should be creating a panel of specialists.  This is on the basis that the judge will then be able to bring in a specialist member with specific expertise on a “case by case” basis. For example those with knowledge of the City or medical matters. 

Early Neutral Evaluation

In addition to being an advocate for ADR (alternative dispute resolution), Judge Latham is also a supporter of “Early Neutral Evaluation”.  This is where, with the consent of the parties, a judge at an early stage can say, on the basis of what he/she had learnt thus far, what seemed to them to be the decision that was the likely outcome of the case, come the end of the trial.  He thought this might very much assist in resolving the dispute.  He even suggested ACAS could be asked to sit in with the judge, as this could inform the debate, and enhance the prospect of the ACAS officer being able to resolve the dispute before the matter concluded at the end of the trial.

On a similar theme, and in what I thought was something of a “back to the future” moment, he said that it should be perfectly possible for a judge, during the course of a hearing, to give an “early indication” as to what he or she thought the outcome would be.  This is, in practice, what used to happen in some cases, years ago.  But it was a practice that was deprecated, not least because it risked giving an impression to the parties that the judge’s mind was made up, before hearing all of the evidence (which, in point of fact, was often far from the case).

Hearings on paper

Hearings “on paper” are often claimed to be the answer to making justice “cheaper”.  Judge Latham acknowledged there is much resistance to this idea, but he suggested it may well be appropriate in cases that involved relatively small sums of money.  If the parties consent, the litigation process could be made quicker, and relations in the workplace might be improved as a result.  I must admit I am not entirely convinced as I suspect the parties’ initial enthusiasm for this method of resolution, may wane somewhat, if the finding was not to their liking…

A “one stop shop”?

One of Judge Latham’s really big ideas was to create a “one stop shop” for all employment disputes.  He was not clear what sort of department store he had in mind for this but he certainly had an eye for the building concept.  A very informal process could be at the bottom, and you could work your way up to the more formal process at the top, which would be litigation. Along the way there could be specialisms.  Judges could no longer restrict themselves simply to determining disputes.  Sometimes they would just have to “roll up their sleeves” and get more involved.   How comfortable they will find that to be, I thought to myself, we will have to see.  Who remembers some of the Judges in the early days, finding their feet as “judicial mediators” rather than judges, for example? Not always a seamless transfer!

Employment & equality in one court

Judge Latham strongly advocated having all employment and equality matters being brought before one court.  He toyed with what that might be called, appreciating that anything with the word “labour” in it might prove politically controversial!  So he settled, for now, on the “Employment and Equality Court”.
Judge Latham very much deprecated the creation of a system, which in practice meant that with the advent of tribunal fees, many small claims (eg for unpaid wages) may now have to be brought before the County Court (because of their lower fees).  Unfortunately, it was not possible to obtain actual statistics from the County Court as to how many claims were involved, but there was certainly a suspicion that some of these new claims were indeed being transferred for this reason.

No need for a separate system for equal pay claims

Lastly, Judge Latham was very anxious to restart a debate over equal pay. He could not understand why we maintained a separate system for that particular species of claim.  In his view equal pay was simply a type of discrimination, and he did not think there was anything in European law which prevented us recasting our system in that way. Furthermore, as things stood, equal pay legislation was too technical, and it required too many detailed separate rules. There was also the need for an overly lengthy “expert” procedure. In his view, that should be done away with.  Judge Latham would just have experts appointed by ACAS, and paid for by the MoJ.  These “experts” could be provided by the Court itself. There was nothing in Article 157 that prevented this.

I must say, I found it hugely refreshing to hear a retiring judge not just reflecting on the past, but offering a clear blueprint for the future.  If this speech sparks a debate, at what he plainly feels is a proprietous time, then this will have been an evening very well spent! 

From my own perspective, I think that if we are to have such a debate we should bear in mind two important points:

First, in general terms, until the advent of employment tribunal fees, many felt that a good balance had been reached between on the one hand allowing business to get on with what it needs to do, and on the other, providing an effective system of protection for individuals, when their employment rights were infringed.  This is something I wrote about many times during the course of the so called “red tape” debate.

Whichever way you choose to fillet the statistics, employment tribunal fees have led to a massive decrease in the number of claims being issued.  That is even after you take out from the numbers those claims that are “multiples”, and those which went through the remission process and were hitherto unaccounted for.  If, as a result of UNISON’s judicial review challenge in relation to the introduction of the Tribunal Fees Order, which is now going to the Court of Appeal, or through the Government’s forthcoming “review”, we get employment tribunal fees “right”, then maybe things  could begin to look a little different…

Secondly, a radical new process has just been introduced into the mix, namely Early Conciliation. It has only been going for a matter of weeks.  In many ways this provides a very interesting opportunity to introduce into the system the ability to have a “free” service by professional, well trained, and on many occasions, experienced mediators, to try and bring both parties together to resolve their matters without the need for a litigation process.  If this is a success, many of our concerns may be much relieved. 

Right at the beginning of his talk, Judge Latham told us that whether we liked it or not, our tribunal system is going to be changing dramatically over the next 5 years.  It was therefore high time for us all to consider what our modern society needs, or wants, in terms of its system of dispute resolution.  If that is right, this could well be a “once in a generation” opportunity to remodel our system.  So let’s get this debate started, and give ourselves time for the political parties to offer their views well before we go into the forthcoming Election. Hold on to your hats everyone, things might start to become a whole lot more interesting!

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