Tinkering around the edges of Employment Tribunal reform

7 February 2011

Last week the government unveiled a consultation paper on “Resolving Work Place Disputes”. This is supposed to be a show case of the government’s ideas to reform Employment Tribunals and ease burdens on employers. There are many points in the document but nearly all of them are a bit of tinkering around the edges and they are very far from an overhaul of the system.

One of the difficulties with the Employment Tribunal system is that its origins are in an informal and cheap way of dealing with employment disputes. It is intended to be accessible to all, including those on low pay, but legal aid is not available. Why would this be a difficulty I hear you ask? Leaving aside the fact that individuals who act for themselves without legal representation often slow proceedings down, increase their length and increase the burdens and costs on the other side and the courts (there has been much comment about this in the family law sphere recently), the answer is because Employment law is now one of the most complex areas of law. This is mainly due to the fact that it deals with discrimination and all its different shades and inherent complexities.

Employment law that is not related to discrimination, such as unfair dismissal, is generally much more straightforward and is based around what a reasonable employer would do. The assessment of reasonableness however brings uncertainty which leads to litigation. The previous government tried to introduce a more rigid system with less uncertainty and clear rules (remember those statutory dispute resolution proceeds that everybody hated and which resulted in more disputes?) and it was a big failure. So it seems that we currently have the better system in place

Now Boris Johnson has criticised Employment Tribunals and employment law.

Unfortunately it is clear from his article that Boris does not fully understand that on which he is commenting (it is always a bit of shame to make a big point out of an irrelevant point as it does undermine his article a bit) and he dwells on the Equality Act which almost any employment lawyer will tell you did not result in many changes to the law or the burdens on employers. However, his point that unmeritorious cases should be kicked out early would be a vast improvement on the current system and would do more to reduce costs for all parties than all the minor tinkering suggested by the government.

The government’s suggestion that legal officers, rather than judges, should hold case management conferences risks turning case management into a solely administrative step. This moves away from robust case management such as limiting claims, striking out claims and giving Claimants a strong indication that their case is hopeless. Further, it would seem to be completely inappropriate and contrary to natural justice to entrust legal officers with the ability to limit or strike out claims. Nevermind the question where are the legal officers going to come from? They do not exist in the Employment Tribunal system currently so is the government proposing going on a recruitment drive at this time of cuts? It is a little hard to believe and if the government did have money to invest in the Employment Tribunal system (which it sorely needs) I am sure its users could come up with 101 different ways to spend the money more usefully.

Contrary to what the politicians say it may be that the best way to improve the system is to stop changing the law and invest in the tribunal system. Neither is likely to be an attractive step for a government keen on making changes and cutting costs.

For more information please contact a member of our employment team

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