Authors:Stephen Levinson
Created:2016-05-01
Last updated:2023-09-18
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Administrator
Do employment tribunals have a future?
The outcome of the current review of civil procedure is likely to have a significant impact on the future of employment tribunals (ETs). The direction of travel of that review and government policy appears to be destructive of what has been most valued in the system. Stephen Levinson analyses the risks facing ETs and considers whether any silver lining is perceivable.
Removing lay members is a fundamental attack on the original concept of ETs and unlikely to be based on a wish to provide the best service for the parties.
Background
The unavoidable starting point, but only as background, is the impact of fees. No one reading this will be unaware of the large reduction in the number of applications to ETs in every category of case since they were introduced. Cynics will say this has been one of the most successful policies ever introduced by a government keen to appease the business vote. The reality is that no one expected the effect to be as dramatic as it has been. The Ministry of Justice (MoJ) has always insisted that the policy driver was the wish to make those who use the service contribute to its cost, but many doubted this was the ministerial view. The latest statistics published by the MoJ in March confirm that the overall reduction of single claims to approximately one-third of the level in 2012 (the year before fees were introduced) continues (Tribunals and gender recognition certificate statistics quarterly: October to December 2015). Further consideration of the figures also shows that in many categories of case the number of applications in the last quarter of 2015 is close to the lowest it has been since 2007/08 and that the lowest figures mostly occurred in the year 2014/15. The figures also reveal that the proportion of cases that fail at hearings has not changed, except marginally downwards. This would seem to make clear that allegations that tribunals were flooded with vexatious claims before the introduction of fees, which have led to those claims being removed, are impossible to sustain.
The Unison litigation, seeking to show the imposition of fees at the current level was unlawful, produced expressions of concern from Lord Justices Elias and Underhill, who are acknowledged experts in employment law and who had long careers as employment lawyers when they were at the bar. The case now proceeds to the Supreme Court. The government concluded its own review on the effect of fees several months ago but that remains unpublished at present. Plainly, the concerns of many are that access to justice has been severely impaired and the futility of having a body of employment rights occupying well over 2,500 pages of Butterworths’ Employment law handbook if most hardworking people cannot afford to bring cases.
If this was the only reason for concern it would be sufficiently worrying, but there are others. These undermine the whole concept of having a specialised forum for the resolution of disputes arising in the workplace. There can be little doubt that the objectives formulated in the 1960s that ETs should be easily accessible, informal, speedy and inexpensive have become progressively less well realised but every investigation of their performance, and there have been many in their 50-year history, has identified the same virtues: a lay element in the judicial process; that the proceedings were relatively speaking informal; and that they were free at the point of entry and of a costs regime. The one continuing criticism was of creeping legalism. This was identified in 1987 in the Justice report (chaired by the late Professor Sir Bob Hepple), Industrial tribunals, and frequently repeated, particularly in 2013 by the Confederation of British Industry in its paper, The right balance: delivering effective employment tribunals, where it complained that ‘tribunals have become too much like courts, which was never their role’.
Concerns
The austerity-driven review of the structure of the civil courts being carried out by HM Courts & Tribunals Service is focusing on ‘efficiency and economy’. These are admittedly legitimate objectives for any government. The terms of reference of the review include consideration of the boundaries between civil courts and the Tribunals Service. As part of the exercise in his interim report in December last year, Lord Justice Briggs, the judge in charge of the review, focused on the position of ETs. He was clearly disturbed by what he saw. The history of the absorption of ETs into a unified Tribunals Service is reasonably well known to most employment practitioners. It involved an agreement between the Lord Chancellor and the Secretary of State for Trade and Industry that ETs, concerned as they are with party and party disputes, and not disputes between individuals and the state, should retain a ‘separate identity’ within the Tribunals Service. This was always referred to as a ‘separate pillar’ within the organisation. Its position was deliberately designed to be distinct from both civil courts and other tribunals. So it has remained. This was apparently news to Briggs LJ, judging by his remarks. He referred to ‘the uncomfortable split of jurisdiction’, ‘the present unsatisfactory isolation of that tribunal’ and ‘their rather lonely existence’. There was no hint in the interim report that Briggs LJ had considered the reasons why ETs had been so positioned.
Briggs LJ also said there was no further need for a majority of lay members and that they could be replaced by assessors if the tribunals moved within the civil court structure. The rationale is that the need has ‘diminished with the growth of detailed jurisprudence’ and that the current position is that the ET and the Employment Appeal Tribunal (EAT) are ‘predominantly judge-led’. He concluded that the current position of ETs is unacceptable and it is now necessary to move them given ‘the desirability of finding the right home for the employment tribunal … and the Employment Appeal Tribunal’. The judge went on to make clear, admittedly on a provisional basis, that the better solution was to integrate and ‘move [them] under the wing of the civil courts’.
It is quite difficult to know where to start with what is wrong with all of this. First, one would like to think that anyone reviewing the appropriate treatment of ETs would have taken the trouble to consider, even in outline, their history and the reasons why we are where we are. If any effort was made in this direction, it has been well disguised, and one suspects it never happened.
As for the suggestion that the need for a lay element has been removed because of an accumulation of precedent, all that does, with the greatest respect to the Lord Justice, is reveal a lack of knowledge of their role. Lay members are there to take a full part in the judicial process and leaven the much narrower experience of the workplace enjoyed by most judges. It may well be the case that their presence in the EAT appears anomalous in a jurisdiction exclusively concerned with issues of law, but even there they have often been praised publicly by the judge with whom they sit. At the level of the ET, they are there to decide whether decisions to dismiss should be regarded as unfair or whether detriment has occurred. These issues turn largely on facts not precedent. It is also the case that government policy has been to reduce the use of lay members by gradually increasing, since 1993, the categories of case that can be heard by judge alone. The most significant of these moves was to add unfair dismissal cases to the list in 2012. While there is still power in all such cases for a full panel to be used, it is now much more usual for cases to be heard by a judge alone. A full panel is always required in discrimination cases. For many, the entire concept of having an ET and a specialised jurisdiction for work-related cases requires a lay element. Also, how one reduces the complaints of increased legalism by making cases judge-alone requires some explanation.
Briggs LJ may be doing no more than reflecting existing practice but that is not to say that it is healthy or sensible. It is no doubt correct that cases without lay members are easier to arrange and cheaper to run. This arrangement will therefore appeal to bean counters and some judges who prefer to run cases on their own without interference from the unqualified. Undoubtedly, however, this is a fundamental attack on the original concept and unlikely to be based on a wish to provide the best service for the parties. This is revealed by the reasons Briggs LJ gives for his suggestion to integrate tribunals either into the civil courts system or the tribunal structure, which include the availability of a management structure and resources. There does not seem to be much purpose in gaining resources and pleasing administrators if the price paid is to destroy entirely the concept of an ET.
Silver linings?
Some will argue that the above is alarmism and that a number of benefits will be achieved by Briggs LJ’s proposals. Cases, they say, will be less delayed by the need to accommodate three people rather than one. All judges can apply the test of fairness and civil court judges make decisions all the time about whether or not someone has acted reasonably. Also, if the judge sits alone, the case is dealt with faster and cases are cheaper to run. While all of this is arguable, it rather assumes there is no purpose in maintaining a specialised jurisdiction for employment cases peopled by those with a specialised knowledge and experience of both employment law and the workplace. If the policy is to abandon this idea then it would be more appropriate to say so rather than achieving it by a series of changes that undermine the ethos of the ET system and then argue that because this is where we are, it is where we should be.
Questions
If ETs are made to abandon their separate identity and are absorbed into the civil court system, a number of further questions arise. At present, hearings take place in rooms that may not be entirely informal but are far more so than most courts. There is great pressure to rationalise the court estate, which may result in cases being heard in more formal surroundings. ETs have developed a fairly well-informed judiciary with a decent knowledge of employment law. It would be unfortunate if this were diluted by allowing those unfamiliar with such cases to hear them regularly. ETs allow anyone to appear as a representative; a move to the court system could remove this flexibility. It is also to be hoped that such a move would not introduce a requirement for judges to wear robes or advocates to do the same. In addition, the rules governing procedure are relatively straightforward compared with civil court rules. Briggs LJ has at least indicated that these should remain in place.
ETs have developed a fairly well-informed judiciary with a decent knowledge of employment law. It would be unfortunate if this were diluted by allowing those unfamiliar with such cases to hear them regularly.
There are other concerns as well. There is a current of opinion that we should provide a streamlined level of adjudication for some straightforward cases that might be heard online or on a paper-only basis. While there is merit in the idea of getting away from one-size-fits-all hearings, there is also a real need for care to be exercised in choosing the nature of cases to be dealt with this way as otherwise it is likely that the process will unduly favour employers, who as a rule will often be better able to process paper than some employees.
The most serious issue is the failure of both the MoJ and the Department for Business, Innovation and Skills to be clear about their objectives for ETs. Possibly they have different objectives. Efficiency and cost savings alone do not create an ethos. If those factors remain the only effective influence on future events then the most likely outcome is the rejection of 50 years of development and the disappearance of ETs as an identifiable jurisdiction.