Proposed Employment Tribunal reform will not fix failing system
14 December 2016
By Andrew Moretta, World of Work PhD student, The University of Liverpool
Some 18 months after the Ministry of Justice review on employment tribunal fees was announced, and six months after a Commons Select Committee Report on fees recommended that the government 'substantially reduce the fees' (and publish the review), we still have yet to see anything. It seems likely that the government prefers to postpone the inevitable political embarrassment, and it may well be that we will have to wait until the transfer of responsibility for tribunals to the Scottish Government (which plans to abolish fees) is imminent before the review is published.
As a consequence, following a joint statement by the Lord Chancellor and the Senior President of Tribunals on 'Transforming Our Justice System', we have been presented with a joint consultation by the Department for Business, Energy and Industrial Strategy (BEIS, formerly BIS) and the Ministry of Justice on the future of employment tribunals, which fails to address the key question of tribunal fees, their impact and their reform.
The government does, however, reveal that it wants to speed up procedure by ‘digitalising’ the system, delegating some of the responsibilities of employment judges to case workers, and extending the circumstances in which judges can determine cases alone. That flexible word 'proportionality' is much used - the government says it hopes to implement 'simple methods for simple cases'.
'Online' justice seems increasingly inevitable (see Justice Briggs’s Civil Court Structure Review of July 2016, and his consideration of the 'online civil court'), and the government proposes a 'common digital portal’ permitting online correspondence between the parties. We are asked to consider the prospect of 'online' decisions in less complex cases. There is no word about digital legal advice or representation, although the government anticipates 'face-to-face assistance' filling in online forms will be available, as well as the usual telephone and web-based help.
It is proposed that procedural responsibilities relating to case management should be taken out of the hands of employment judges and placed in the hands of 'tribunal case workers'. The government envisages that disputed decisions would be taken to a judge for re-consideration.
More controversially, opinions are invited on proposals to permit judges sitting without the two lay members of the tribunal panel to hear more complex cases. The government wishes to allow BEIS and the Lord Chancellor to delegate the power to determine the composition of tribunal panels to the Senior President of Tribunals, and it proposes to shift responsibility for making procedural rules from BEIS and the Lord Chancellor to the Tribunal Procedures Committee. The Ministry of Justice in consultation with BEIS will remain in charge of procedural policy, and BEIS will retain responsibility for employment law.
If the proposals floated in the paper go ahead then we will have a slightly stripped down and computerised version of what it describes as a "familiar, understood and trusted brand". It seems we will have to wait for a change of government before we see a fundamental reform of this tired and failing system.
Andrew is the author of IER publication Access to Justice: Exposing the Myths, now available for just £6.