The Coalition Government’s consultation on reform of the Employment Tribunals’ service

Article date: 01.02.11

 

(Resolving workplace disputes: A consultation, January 2011)

*The Coalition Government’s consultation on reform of the Employment Tribunals’ service. (Resolving workplace disputes: A consultation, January 2011) The government’s consultation on the employment tribunals’ in England and Wales was published in January 2011. It invited responses to various, in some cases very significant, proposals for reform of the employment claims system. The consultation period ended on 20 April 2011 and the outcome is, at the time of writing, unknown. What is universally accepted is that there is likely to be significant changes in the way the employment claims system operates over the coming year. The key proposals in the consultation paper are as follows, it remains to be seen which of these proposals are implemented and in what form.

 

 

  • That all employment claims are first sent to ACAS to attempt conciliation. While it would be mandatory to submit the claim to ACAS it would not be mandatory to engage in the conciliation process. When the claim is submitted to ACAS it will be date stamped. The date stamp will be the relevant date for the tribunal when considering whether the claim is statute barred, that is to say that a claim submitted to ACAS within 3 months will be in time even if it is not issued in the tribunal until after the 3 month limitation period has passed.
  • That the tribunal should have the power to strike out a claim or defence on the ground that it has no reasonable prospects of success at any hearing or without hearing the parties and without giving them the opportunity to make representations. If a case were struck out without hearing representations then either party could apply for that order to be set aside or varied. Respondents would be able to request, on the ET3, that a judge consider the ET1 and consider exercising the power to strike out before the respondent fully completes the ET3.
  • That deposit orders may be made at any stage in proceedings requiring a party to pay monies into the tribunal – this power is used to deter weaker cases. The current position is that such orders can only be made at certain hearings in the Employment Tribunal and the limit is set at £500. The proposal is that such orders can be made at any stage in proceedings in both the Employment Tribunal and the Employment Appeals Tribunal with or without hearing and that the limit be increased to £1000.
  • That the level of costs (legal fees) which the tribunal can order a party to pay be increased from £10,000 to £20,000. The current position is that where costs exceed £10,000 the matter must be transferred to the civil courts.
  • That the ET1 form be changed so that more detailed information is provided about the claim. In particular the inclusion of a statement or schedule of loss providing a breakdown of claimed losses.
  • That a procedure is introduced for making settlement offers which would be similar to CPR Part 36 with rewards and penalties for making or refusing to accept reasonable offers to settle. The proposed rewards and penalties would take the form of an increase or decrease in the amount of financial compensation awarded.
  • That witness statements, unless a judge orders otherwise, will stand as evidence in chief and will no longer be required to be read out in full. Several safeguards are suggested which in effect allow a judge or tribunal to require any witness statement to be read out if they consider it appropriate.
  • That witness’ expenses are no longer recoverable from the tribunal. It is suggested that witnesses and parties would be liable for their own expenses and that the parties could pay for their witness’ expenses on a similar scale to that in CPR Part 27.
  • That employment Judges can sit alone, instead of the normal panel of 3, in unfair dismissal cases. The proposal is not for all unfair dismissal cases but it would likely cover the vast majority of them.
  • That many interlocutory matters, currently dealt with by the judiciary, be delegated to a suitably qualified Legal Officer. Such matters would include, but not be limited to, provision of information, adjourning and postponing hearings, exchanging documents, amending pleadings, requiring expert evidence and listing cases for hearings.
  • That the overriding objective of the employment tribunals’ constitution be amended, in line with the CPR, to include the importance of ‘allotting to each case an appropriate share of the tribunal’s resources, while taking into account the need to allot resources to other cases’.
  • The introduction of fees as a way of service users contributing to the cost of running the system. Such changes would first be the subject of a consultation with a view to implementation in the spring.
  • Extending the period of continuous employment required to bring a claim for unfair dismissal from 1 to 2 years.
  • To impose financial penalties, payable to the Exchequer, on employers who breach the relevant rights of employees. The penalty will be based on the amount of the total award made by the Employment Tribunal. It shall be half of the total award subject to a minimum of £100 and a maximum of £5,000.
  • That the way in which financial awards are calculated be considered and amended, this issue is being considered but no substantive proposals are made.

The consultation paper can be viewed in full here: Resolving workplace disputes: A consultation

*This is not legal advice; it is intended to provide information of general interest about current legal issues.