Two bites of the apple- limitation in professional negligence cases
Sometimes you have just got to be there. In this case at a new style Employment Tribunal Users’ meeting.
These meetings very nearly fell by the wayside. ELA became involved in order to try and generate more enthusiasm for them. I should declare an interest in that respect, as I was Chair of ELA at the time. Certainly, we do seem to have played our part in what to my mind, has been a quite remarkable turnaround with respect to these meetings.
Undoubtedly this has been assisted by having in place a new President of the Employment Tribunals in England and Wales (Brian Doyle). He has spent the first few months of his term of office taking care to visit all of the regions for which he is responsible in order to consult widely with stakeholders. Given the seismic changes brought about by the introduction of widespread reform this past year and a half (ET fees being the most significant amongst them) it is just as well.
This new spirit of openness is not just being spread downwards into the individual regions. It is being actively sponsored by the regions themselves, through their respective Regional Chairs – at least so it would seem from my experience of the London-based meetings.
The very latest was London Northwest, chaired by Regional Employment Judge (REJ) Vivienne Gay at Watford on 23 October 2014.
We began with a statistical analysis of the picture for the Region, the REJ’s assistant distributing a set of performance data set out in a succinct and meaningful way. Discussion around these statistics was then encouraged. That was both welcome, and how it should be, and the stakeholders present took full advantage of the opportunity to have a thoroughgoing discussion as to what was happening in the region in terms of numbers of claims, and how they are being processed.
So what did we learn?
First of all it is absolutely clear that the dearth in Employment Tribunal claims continues. Whichever way you skin it, the numbers are quite remarkable. By way of example, according to the figures we were given, in the 3-month period from April to June this year, the number of single claim applications fell from 578 in the same period last year (April to June 2013) to 178. That is a fall of some 400, or in percentage terms a fall of 69.2%.
On an annual basis, for the period October 2012 to September 2013, 2,411 single claims were accepted into the region, yet for the subsequent period October 2013 to September 2014, these had fallen to only 934. This represents a drop of some 1,477 which equates to a decrease of 61.26%.
Secondly, you might expect that in light of the fact that so few applications are now being made, time taken to process applications and correspondence, and to produce judgments following hearings, would have correspondingly decreased. In that respect, we looked at the statistics, which in fact showed “promulgation numbers” (the time between the last day of the hearing of the case, and the sending out of the judgment to the parties) looking worse, not better. It was explained, that this is because numbers of administrative staff have significantly decreased (presumably in line with the anticipated drop in workload). The system also remained subject to vagaries in performance which may in part, be because some of their administrative techniques have been stuck in the past. As an example, Judges dictate their judgments and at Watford at least, this process has been made vulnerable because of one or two staff absences, such that judgments have been delayed before being typed up. They can call for assistance (for example, from Immigration Tribunals), but I did not get the impression that much back up support had been made available to them. I thought that because of the significant drop in the number of claims, that might have meant more judgments were being produced by full-time, rather than part-time employment judges. Full timers would be more “in residence”, and therefore better able to deal with judgments as soon as they were typed. My presumption was wrong, however. REJ Gay reported having a number of hearing days coming before part-time (fee paid) judges. In any event more recently, we were told, there have been an increasing number of requests for judgments to be confirmed in writing, and this would have exacerbated the problem.
As was hinted at during the course of the meeting, there does now appear to be an increasing trend to transfer (spare) resources from the Employment Tribunal to other jurisdictions, such as Immigration. This ties in with another factor (learned, not in this particular meeting but in another context) namely the desire of the Ministry of Justice to make more and wider use of the “Crown Estate”, in other words court buildings of whatever type. This may not currently be a particular problem in London Northwest, but it does seem that merely because Employment Tribunal cases are not appropriately held in a crown court, will not stop cases in the future being heard in that way. A female claimant bringing a sex discrimination claim against her employer might not be expecting to see a jury box and a dock in front of her, but that may start to happen…
Times change however, and this is the new reality. Whether this is just a temporary phase whilst the Court of Appeal wrestles with UNISON’s judicial review challenge in relation to the introduction of fees into the Employment Tribunals, and the political parties scrap over policy in this area for the purposes of the forthcoming general election, is hard to predict. Certainly when I attended the High Court last week to hear the second day of the UNISON challenge, it did seem to me that Lord Justice Elias was well aware of the significance of the decision that he had to make in this respect. I also did not get the impression that we could expect the Court’s judgment any time soon, apart from anything else, because there are still more documents to be exchanged between the parties.
Have we turned a page?
One cannot help feeling that in terms of employment law, we have turned a page. Where that will leave us in terms of individuals’ ability to access the Courts and Tribunals to protect their employment rights, and, arguably even more contentiously the extent to which it is worth spending resource on debating what those rights should be, if they are effectively not going to be accessed and potentially asserted, is difficult to answer. Something I could not help pondering whilst I was recently watching the new musical “Made in Dagenham” at the Adelphi Theatre here in London. How would women have won much of the battle for Equal Pay over the last 40 years I asked myself, if at the time they would have had no realistic or practical recourse to the Courts and Tribunals to enforce their new hard won rights? And if that was the case, might they have bothered
Nonetheless the fact that we can now have open discussions with the Tribunals we use, not just with the administrative staff, but with the Judges who run them, and their fellow judges that hear the cases, is a real step forward, and a development we should undoubtedly welcome.
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