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Where next for Employment Tribunals?

Last summer, the government indicated its intention of government and the senior judiciary to radically reform the existing civil justice structures.

Last summer, speeches from Lord Chief Justice Thomas and the Lord Chancellor, Michael Gove, indicated the intention of government and the senior judiciary to radically reform the existing civil justice structures. In short, they felt the existing structures were not fit for the 21st century. In particular, the diagnosis was that they failed to make effective use of technology to facilitate access to justice for all, not just a few.

Against this background, Lord Justice Briggs was tasked by the Lord Chief Justice to conduct a review of the civil courts structure in England and Wales and make recommendations for its reform. This review has pressed ahead at lightning speed. An interim report was published in January 2016 and Briggs LJ final report is due to be published in April.

Whilst there has not been a formal consultation exercise, the Employment Lawyers Association (ELA), along with other stakeholders, has been invited to comment both on the review’s initial terms of reference and the interim report.

While employment law disputes are on the fringe of the main review, Briggs LJ’s interim report raised two issues which ELA felt compelled to comment on, namely: the creation of an online court which, save for very limited exceptions, would deal with cases worth £25,000 or less; and where employment tribunals (ETs) would sit in any new system. Currently ETs uniquely sit outside the courts and tribunal structures.

Briggs LJ proposes that an online court would deal with disputes differently from the current ‘adversarial’ system. Cases would either be dealt with ‘on the papers’ (without a hearing) or if there was a ‘hearing’ it would not necessarily require the parties to physically attend a court (hearings could be done over the telephone or Skype). The system would be devised to enable parties to represent themselves with judges adopting a more ‘inquisitorial’ approach to reach an outcome.

The interim report also contained several negative comments about ETs’ current status, including that they were ‘uncomfortably stranded between the civil courts and the main tribunal structure’. Whilst not giving a conclusive view, it is apparent that for administrative and costs reasons there is a desire to place ETs either within the existing courts or main tribunal structures.

Online courts

The introduction of an online court for lower value claims could offer greater access to justice for individuals and would be improved by being less adversarial than the current system. However, ELA questions the suitability of an online court for employment law cases which have added sensitivity because of the nature of the employer/employee relationship; the imbalance where a single unrepresented employee is facing the better-resourced employer, and where issues can be extremely complex (irrespective of the value of the claim).

ETs with specialist judges remain, in ELA’s view, the best means of resolving employment law cases fairly. If there were to be a decision to press ahead with certain employment cases being run in an online court, then ELA stresses the need for the focus and safeguards afforded by ETs to be mirrored in the online system.

Employment Tribunals

Whilst Briggs LJ’s interim report does not focus on ETs, ELA is concerned by the many negative and subjective references about them, by questions about where ETs and the Employment Appeal Tribunal should sit in the overall courts structure, and also by mention of replacing lay people with assessors.

While Briggs LJ appears uncomfortable with where ETs stand in the system at present, ELA very firmly endorses his underlying view that questions about the future should be subject to significant further work and consultation and need to take stock properly of the history behind the existing set-up. ELA considers there are far-reaching decisions to be made about ETs falling outside the scope of Briggs LJ’s review – those requiring a separate inquiry.

In particular, ELA says arguments around administrative convenience and cost-saving suggested by encouraging integration of ETs into the civil courts structure ignore the benefits, function and ethos of the Employment Tribunal system. Anticipated costs savings from making changes also have yet to be demonstrated.

Paul McFarlane (paul.mcfarlane@weightmans.com) is a Partner in the London Employment, Pensions and Immigration Team.

He co-chaired the Employment Lawyers’ Association working party that responded to Briggs LJ’s interim report.

A version of this article was first published in the Law Society Gazette on 31 March 2016. See the original article in context.