In this article, Mike Emmott analyses proposed changes to the workplace dispute resolution framework. These plans aim to bring down the overall cost of access to justice, which the introduction of fees for employment tribunals seemed to deny many people. However, they are also geared towards making the scale of the legal of the legal process proportionate to that of the problem to be solved.

By Mike Emmott, Associate Adviser

There is no news so far on the outcome of the review by the Ministry of Justice (MoJ) of employment tribunal fees, introduced by the last Government. However, there are other legal developments afoot, whose long-term impact on tribunals might turn out to be at least as great as that of fees.

Structurally, the employment tribunal system is neither part of the civil court or the first-tier tribunal system; as such it forms a “separate pillar”. You might think that employment tribunals would be unlikely to be directly affected by reform of the civil courts, but if so, you'd be wrong. Radical changes to the court system, recently proposed by the MoJ and already widely discussed within the legal profession, are going to have a significant effect on the structure of employment tribunals and the way they operate.

It's unclear at this stage precisely how employment tribunals will fit into the new system. However Lord Justice Briggs, who has done much of the spadework on court reform and whose final report was published in July, found a high level of agreement among those he consulted that "convergence between employment tribunals and civil courts" made sense. The report did not make firm recommendations for changing the structure of the employment tribunal system, and we will have to wait and see if concrete proposals are developed by government.

A single employment court?

As well as a possible move to the civil courts system, there are also proposals to create a single employment court for all employment disputes. The concept of an "Employment and Equalities Court" was first proposed in 2014 by David Latham, the then outgoing President of Employment Tribunals in England & Wales. Since then, the Law Society has come up with detailed proposals for a single employment jurisdiction, and the Employment Lawyers Association (ELA) has also responded to proposals for a single employment court. It is envisaged that a single employment court would combine the jurisdiction of employment tribunals with some cases currently heard by the civil courts, such as restrictive covenants. We have yet to see a government consultation with firm proposals for taking forward these proposals.

The Law Society is currently proposing a series of four levels for dealing with claims, where neither workplace resolution nor early conciliation has been successful. These would range from simple straightforward matters (level 1), where a decision could be based on the papers, to complex and high value claims (level 4), which would be determined by a judge.

You could see the location a single employment court in the civil courts system as a logical conclusion to the "legalisation" of employment tribunal process that has been underway now for many years. And you might be tempted to conclude that it's about as far from the initial concept of industrial tribunals, with its emphasis on accessibility and informality, as it's possible to go. But that would be to jump to a premature – and probably mistaken – conclusion.

The MoJ proposals are essentially aimed at bringing down costs. No surprise there, as the costs of legal representation have pushed access to justice out of reach for many individuals and smaller businesses. But what is encouraging about current MoJ thinking is the emphasis on making the scale of legal process proportionate to that of the problem to be resolved.

The objective is to confine judicial hearings to the minority of cases that cannot be decided by other means. This means more use of case officers for routine tasks, more decisions made "on the papers" without the need for a physical hearing, and more hearings held over the phone or by videoconference. There is also emphasis on the use of early neutral evaluation at every stage of the process. This must be welcome news to those of us who have argued down the years for more use of mediation and other forms of alternative dispute resolution.

Moving to online courts

The other big driver of change underpinning the MoJ proposals is the perception that the court system is drowning in paperwork. The assumption – and the issue that is likely to attract most political attention – is that there will be a wholesale shift to digitisation of court process. The clear aim is that many disputes should be resolved entirely online. Lord Justice Briggs rejected criticisms that this would mean a form of "second class" justice, and suggested that all decisions about substantive rights would need to be made by a judge.

HR professionals are likely to give the proposals we have seen so far a cautious welcome. Much of the thinking behind them is in line with that adopted Michael Gibbons in his report on dispute resolution in 2007, with its emphasis on alternative dispute resolution (ADR). However, a more considered reaction will need to depend on the detail, which at this stage is understandably absent.

For example, what rules of procedure would apply in a single employment court, such as the rules about awarding costs to the winning party? Another important issue raised by the MoJ proposals is the composition of panels in tribunals. The current proposals are wider than employment tribunals, yet the suggested direction of travel is that where "specialist expertise or knowledge" is required it will continue to be provided by non-legal members.

When the then “industrial” tribunals were set up 50 years ago, at their heart was their composition of lay membership. It is not clear whether or not this “industrial jury” will continue and, if not, we will need to carefully assess the potential implications for employment tribunals. The MoJ says that reducing the use of panel members in most unfair dismissal cases has not "notably" affected outcomes. So we can safely assume that they will not be looking to increase the use of lay members.

The issue is how much weight a regime based on bringing in people with specialist experience would actually place on their understanding of the workplace, which is more about context and personal relationships. On the face of it, "specialist expertise or knowledge" sounds more geared to importing medical or technical experience. This will be one of the issues that CIPD will comment on once debate begins to focus more sharply on employment tribunals.

Other key developments affecting the future of ETs

Employment tribunal fees is another fundamental area of employment tribunal reform where we could still see further change. Their introduction in 2013 seems to have put a cap on the debate about "weak and unmeritorious" claims, and the Government is unlikely to abandon the principle that tribunal users should contribute to their costs. Indeed, when the House of Commons Justice Committee published its own report on changes to fees for court users in the civil and family courts and tribunals in June 2016, it stated that it had no objection to the principle of charging fees. However, it also said that the “clear majority of the decline” in employment tribunal cases “is attributable for fees.” It also called on the Government to publish its post-implementation review of the impact of employment tribunal fees, and that the delay was unacceptable.

Assuming that plans for court reform are implemented against the kind of short-term timescales currently foreseen, the fees regime will presumably need to reflect the different ways in which cases may be handled by a single employment court if this is established. This may help to explain why the long-awaited MoJ’s impact assessment review has not, so far, been forthcoming.

Yet another development affecting employment tribunals is the Scottish Government’s consultation on its draft Order in Council for the transfer of Scottish-related employment tribunals to the first-tier Tribunal for Scotland. We await the results of the consultation but this raises a further host of issues affecting cases heard both sides of the border.

The fundamental question raised by the proposals for court reform is, just how different are legal disputes arising in the workplace from any other kind of legal dispute, and how should this affect the way they are managed? Since the Donovan report in 1968, workplace issues have been seen as requiring quite different treatment from other kinds of dispute. That seems unlikely to continue for much longer.

Mike Emmott

Mike Emmott, Associate Adviser

Mike's special fields of interest are employee relations and employment law. Central to his work is the way in which economic and social changes are affecting employee attitudes and working practices. Recent work has focused on employee voice, global employment relations, industrial relations skills and HR in the public sector.

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