Access to Justice: employment tribunals at a crossroad
Following far-reaching changes to employment tribunals practice and procedures, this IER event provided information and analysis of the changes
Wednesday 19 March 2014
A one-day conference
UNISON centre, 130 Euston Road, London NW1.
Following the introduction of far-reaching changes to employment tribunals practice and procedures, this timely IER event provided information and analysis of changes to dispute resolution and access to justice.
We launched our new publication Access to Justice in employment disputes: surveying the terrain at this conference – find out more here
The well attended London version of this conference held at the Unison HQ on 19th March was timely following the recent release of government statistics showing a 79% drop in tribunal applications in the final quarter of 2013. Individual claims were down by a staggering 63% in the same period, illustrating the relevance of this event. Access to justice for workers is being attacked both by legislation and by process. Speakers during the day tackled both the legislation and the impact of the introduction of fees on workers’ ability to access justice through legal representation.
The Institute’s Director, Carolyn Jones welcomed delegates to the conference, noting it was the first IER event to take place since the sad loss of two stalwarts of the labour movement and close friends of IER, Bob Crow and Tony Benn
Carolyn encouraged delegates to buy two IER publications on the subject of access to justice, the second being Justice Deferred: a critical guide to the Coalition’s employment tribunal reforms. The aims of the publications and the conference she said were to examine and refute the government’s narrative that says regulations are a burden and that rights cost jobs. She referred to the impact of fees on the number of cases being lodged and the increase in the number of pre-tribunal settlements.
Nicole Busby from the University of Strathclyde presented an overview of the terrain covering employment disputes and access to justice. She acknowledged that the pre-coalition landscape was far from rosy and that changes enacted by the previous labour government had contributed to the current situation. This, most importantly, included changes to the nature of industrial relations in the UK with a shift from collective bargaining to individualisation of rights and disputes. In addition, reviews of the ET system by successive governments advocated more resolution of disputes in the workplace and resulted in the introduction of statutory grievance and disciplinary procedures.
Three years later the Gibbons review was established to look again at dispute resolution which he felt were complicated and costly. His review resulted in a revised ACAS code and a repeal of the statutory procedures. The current government was focussing on whether current procedures are appropriate for business. The Beecroft Report endorsed some of the reforms already in the mind of government and contained proposals which would make dismissal of workers easier. All of this represented a shift from access to justice to deregulating labour rights.
Nicole identified a number of blots on the landscape under the Coalition agenda. Changes to employment law and the introduction of tribunal fees based on an assumption that the tribunal system was in “crisis”. She dismissed the claim that it was too easy for employees to make “unmerited claims”. In admitting that there were problems, the government’s approach was, she asserted, a case of misdiagnosis. The increase in claims was a result of changes in the nature of industrial relations and included multiple claims brought by trade unions. The changes in the rules would not reduce claims but simply make them go away because of costs to claimants. Fees have also added to the existing social costs to claimants. She argued that the costs to employers should be high if they seek to avoid legal liabilities to their employees. Many awards go unpaid and result in additional costs to applicants who need to pursue payment through other court proceedings.
Nicole told the conference that the prescription of increasing qualifying periods for unfair dismissal, removal of lay members, the fees regime and ineffective remission system and the early conciliation scheme was the wrong medicine. The outcome was keeping disputes out of tribunals and limiting access to justice.
Turning to her research looking at claimants who use the CAB and do not belong to trade unions, she drew attention to findings that pointed to applicants’ fear and not knowing what to expect at tribunals; intimidated by language and concern about not getting their points across appropriately or articulately. None of the reforms tackle these issues. She reminded conference of the need to gather evidence that can be used for future challenges to the fees regime and its detrimental impact on access to justice. She called for unions to join with the voluntary groups that seek to represent non union members in the fight against these reforms.
David Renton from Garden Court Chambers, author of Justice Deferred started (with tongue in cheek) by seeking to persuade delegates that Adrian Beecroft was not the demon he had been painted. His proposal to do away with unfair dismissal and replace it with a right to a payment of 9 months pay if sacked by the employer was in itself not a bad deal given the traditional level of settlements. The real problems were the changes brought in by the government. Vince Cable’s proposals introduced tribunal fees, employee shareholder status with no employment rights and capped unfair dismissal awards at 12 months pay, but only if you go to tribunal and win your case. The fees, David pointed out, were excessive as compared to fees in the Court of Appeal and the remission system only worked if your family income was less than £13,000 pa.
Turning to the Tribunal Statistics for 2011-2012 (pre fee system) David produced evidence to support his argument that the basis for reform was ill founded. The reduction in claims over a three year period; many of the claims were far less than the statistics suggest pointing to the Working Time Directive claims (94,000) which was in fact one claim on behalf of airline pilots which had to be resubmitted several times and each time was logged as a new claim for every individual member. He went on to point to the evidence provided which showed a high percentage of success of cases that actually got to tribunal hearing and the failure of so many cases to actually receive the reward made.
He then turned to the more recent statistics in the fourth quarter of 2013, comparing these with the equivalent quarter of 2012. The reductions were enormous in each category of claim. 83% reduction in sex discrimination claims, redundancy pay claims down 82%, disability discrimination down 84% and unfair dismissal claims down 80%. In one ray of hope, David suggested that the anger in the workplace to unfair treatment had not diminished and that, in the absence of tribunal claims, the answer lies with trade union organisation, providing an opportunity for this to grow.
During the Q&A session that followed the interesting question was raised as to whether we want to return to the ET system we had before. David responded by saying that it is difficult to see an alternative when the system was not owned by workers but by the government and he saw no likelihood of change.
Professor Bryan Clark from the University of Strathclyde (a contributor to the IER’s Access to Justice report) talked about the mediation process in employment disputes. Bryan started by explaining that mediation is an assistance to parties to reach their own resolution to their dispute by a third party neutral (mediator). It is voluntary, confidential, and the ethos is one of empowerment of parties to resolve the dispute themselves. It is focused on looking forward and is based on a facilitative model. It can take place by joint session or shuttle mediation or a combination of the two. It may involve legal representatives and duration can vary enormously.
Bryan went on to explain the process which follows a similar approach to conciliation with the third party introducing parties, identifying the issues, exploring them and then considering the options and finally recording the agreement. He accepted that in reality the process is not always as simple as that and requires a more flexible approach to bring about a final resolution.
Turning to developments in employment/workplace situations Bryan told conference that the system had developed relatively well in the UK. This was as a result of judicial support, drive from HR professionals and employment lawyers alongside a growth of active mediation providers in the employment field. Referring to the Scottish system, ET Judges mediate in complex discrimination and unfair dismissal cases. The judges are facilitative and do not express legal opinions when acting in that capacity. Initially the service was free but now involves a fee of £600. Evidence is positive from those who have used the scheme with high success rates but initial take-up has been lower than expected.
More general evidence from England suggested that mediation had improved working relations in small firms with strong support from employers. He suggested it works because it can lead to ‘ownership’ of agreements as parties have been directly involved. It can alleviate cognitive biases and miscommunication as it allows parties to come together to discuss the issues. It also offers the opportunity to reality test the parties’ respective positions and meet the needs of procedural justice and finally it offers the potential to repair broken relationships.
In conclusion, Bryan pointed to the introduction of early conciliation from ACAS which may limit the scope of mediation and the charging for judicial mediation will have a significant impact on uptake. Of concern to Bryan was the danger that mediation will become seen as justice on the cheap for those that cannot afford access to the courts. Similarly he expressed concern over whether mediation can eradicate power imbalances between parties and whether settlements are ‘just’.
Victoria Phillips from Thompsons Solicitors spoke on the subject of pre-termination negotiations and what was confidential about them. The idea arose from the initial thoughts of Beecroft subsequently produced in current format by the coalition, courtesy of Employment Minister at the time, Norman Lamb. Victoria went on to describe the nature of pre-termination negotiations comparing them to “compromise agreements” which had been around for many years using the “without prejudice” concept. This concept applies where there is an existing legal dispute and there is a genuine attempt to settle. The pre-negotiation provisions apply to unfair dismissal claims (including constructive dismissals) but not automatic unfair dismissal, breach of contract and discrimination because of a protected characteristic. Victoria suggested that little had changed as a result of this “new” provision.
The confidentiality aspect was limited by anything said which was improper in the view of a tribunal or was connected with improper behaviour. This she argued could lead to satellite legal disputes aside from the main complaint. ACAS has provided a code of practice as to what improper conduct amounts to. Bullying, intimidation, physical assault, victimisation and undue pressure such as not giving reasonable time to accept the settlement are examples given in the Code.
The risks to employers include the way that the offer is made may not be protected or that improper behaviour takes place; ignoring procedures when no settlement is reached or a grievance from the employee in respect of protected characteristic. The risks to employees may make it harder to prove constructive dismissal, or make it harder to identify reason for dismissal, or being called into a meeting ‘out of the blue’. Although Victoria did not see much evidence of this procedure being used she did remind delegates of the right to be accompanied by a trade union representative at such meetings. She concluded that whilst this did not represent a huge change it nevertheless exists. Some employers might see it as a way to resolve issues and some private sector employers may seek to call members into meetings to avoid procedures.
During the Q&A session the experiences of delegates were related which included pointing out that using these procedures was not limited to private sector employers.
The afternoon started with Andrew Wareing, Chief Operating Officer of ACAS on resolving employment disputes. He started by outlining the range of services that ACAS provides for resolving disputes including conciliation, mediation and arbitration. However the main thrust of his talk focused on the individual and pre-claim conciliation to be known as Early Conciliation from 6 April 2014. Andrew reminded the conference that pre-claim conciliation had been in place since 2009 and had operated through the ACAS helpline service now doing around 20,000 cases per year. This is a pro-active service which seeks to prevent a legal process having to be followed. He asserted that the results of such actions had produced 50% in settlements and only 25% end up as tribunal cases. Research suggest that this service provides a high level of client satisfaction.
However, Andrew identified two problems with the service. A lot of people are unaware of the service and the limitation period often means there is not enough time for effective conciliation. Under the new procedures, applicants have to notify ACAS of their intention to lodge a tribunal claim; this notification ‘stops the clock’ on the claimant’s limitation period. This is set to initially last for a calendar month but can be extended by ACAS up to 14 days if a settlement is deemed possible.
Andrew also told delegates that the process can be brought to an early conclusion for a number of reasons and this reverts the claim back to the tribunal system. The process is voluntary and the claimant can proceed with their tribunal case at any point. Conciliation can still take place outside of this ‘stop the clock’ period either before an ET1 is submitted or after submission of an ET1. He explained the notification process, which will mainly be through a web based form (alternatives are available where appropriate) which require contact details of applicant and respondent and how best to contact them. On receipt of notification ACAS will contact claimant, gather details and help allocate a conciliator. The conciliation officer will be responsible for contacting the parties and be pro-active to meet the timescale for early conciliation. At the end of the Early Conciliation process a certificate is issued to confirm that the process is complete.
Andrew went on to explain why he felt Early Conciliation makes sense. It was not clear, he accepted, what the impact of tribunal fees will have on the number of cases to be handled but ACAS will have the resources to deal with this. He identified the benefits as awareness for litigants of the service; provides a cost effective way to deal with disputes in the workplace; it is free and quick and is confidential. He refuted the suggestions that the system was another hurdle to the access to justice or that it was a way of weeding out cases. He argued that it offered more time for conciliation than currently exists. Finally he said that Early Conciliation was about resolving cases earlier rather than resolving more cases.
Morag McDermont from the University of Bristol then spoke about the research she was involved in with Nicole Busby. She identified the cost of ‘justice’ as including social costs as well as financial and the research was designed to provide evidence of the overall costs. The research engaged with the CAB and a number of participants and Morag used one of the cases to illustrate the issues around dispute resolution. The case revolved around a worker who alleged underpayment by her employer and ultimately had no choice other than to resign when she could not afford to get to work. The CAB referred her to a solicitor and a tribunal claim was submitted. The case had conflicts over who the employer was and the applicant had a problem with language throughout the process including the hearing. The applicant also did not understand the process but the case did result in an award. However the judge warned that she would probably have to go to a law centre to obtain enforcement.
Morag told delegates that this was typical of the research participants that they investigated. Typically they did not understand the law, the process and the timescales. Also they were unclear of the roles of the various parties, the potential costs and were fearful of attending a tribunal and surprised about the need for enforcement proceedings. With this in mind Morag went on to identify future changes that would be necessary to address these issues.
She posed the possibility of a return to tripartite decision-making with parties representing themselves or a right to legal representation. Neither, she accepted, were likely in the foreseeable future. She then turned to alternatives and starting with CABs she argued that they should train up volunteers for casework rather than rely so heavily upon referrals to specialist lawyers. The emphasis should be on early intervention before formal legal action but backed up with specialist support.
Moving on to the tribunal process itself, Morag argued that more information should be provided and that staff be more supportive of unrepresented applicants. It should be made clear that it was perfectly legitimate to represent yourself at tribunal and that judges should use ‘ordinary’ language. She then raised the issue of enforcement and the disgrace of less than half of applicants receiving full payment of their award, with 35% receiving no payment at all. She argued for a more proactive role for government in enforcing employment tribunal awards. This, she argued, could be done by HMRC as part of their existing enforcement procedures.
Finally Morag argued that the answer really lay with empowering workers. The need for developing a rights culture. This she illustrated by reference to a paper by Elizabeth Hoffman (Law & Social Inquiry 2003) ‘Legal Consciousness and Dispute Resolution’. This showed the differing approaches of a private taxi business and a workers’ co-operative to dispute resolution in the workplace.
In the final Q&A session of the day a range of issues were raised relating, amongst others, to the issues of identifying an employer at tribunal; the benefits of a tripartite system of justice; loss of tribunal lay members from many cases; issues on early conciliation and revisions of tribunal systems to become less legalistic.
Andrew Wareing responded to the early conciliation questions by asserting that there was no evidence that the fees regime was impacting on settlement offers and that an impasse could be created by either party. The conciliation process itself is not mandatory but notification is and the certificate issue is automatic. Cuts in services have so far not adversely impacted on this provision. Andrew concluded that it was his hope that Early Conciliation could provide a role for lay representatives in the process.
Morag McDermont responded about the involvement of lawyers in the dispute resolution system and argued that their exclusion needs to be considered but would only work if there was a major simplification of employment law. She hoped that her research would assist in developing the right model for the future of dispute resolution.
Carolyn Jones brought the conference to a close by thanking all the contributors and the participation of the delegates.