Civil servant judges put employment law at risk
25 January 1999
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When the Employment Rights (Dispute Resolution) Act 1998 comes into force later this year, claims by employees will increasingly be hammered out under a more casual regime of dispute resolution.
However, employment lawyers fear that, under the new legislation - designed to speed up and reduce the cost of employment disputes - crucial judicial decisions are going to be made by civil servants not lawyers.
According to the Act, legal officers, who do not have to be legally trained, will be able to determine interlocutory matters such as discovery orders and applications for adjournment, which could directly affect the outcome of cases. These are currently the remit of legally-qualified tribunal chairmen.
Law Society employment law committee chair, David Cockburn, says: "The question is what level of qualification these people will have, and the Law Society believes it should be a solicitor or a barrister, or failing that a law graduate, but definitely not a career civil servant."
Cockburn says equal pay and discrimination cases often depend on the inferences that can be drawn from documents such as minutes of meetings and work statistics. Therefore, the legal officer's decision may mean "the difference between winning and losing".
Barrister and secretary of the Employment Law Bar Association Jennifer Eadie, says: "We know very little about how much training legal officers will have, but their role is potentially very important, because their decision may mean the case has to proceed without the best evidence."
The Lawyer understands the Department for Trade and Industry (DTI) is considering piloting the use of legal officers in the summer.
A DTI spokesman says: "A guidenote to the Act says legal officers will be qualified solicitors and barristers, or Scottish advocates. However, this might not happen and we expect an announcement to clarify this in due course."
But the DTI is yet to decide whether parties will be able to appeal decisions made by legal officers at the Employment Appeal Tribunal (EAT), or to a tribunal chairman sitting on his or her own.
The Lawyer understands the DTI favours the former, whereas the Employment Tribunal Service is lobbying for the latter.
An appeal direct to the EAT would not only be slower, but would give legal officers equivalent status with tribunal chairmen.
Another issue causing concern is a new arbitration scheme being set up by the Advisory Conciliation and Arbitration Service (Acas). From spring this year, parties involved in unfair dismissal disputes in the Greater London area will be able to choose to go to arbitration under the new scheme.
Acas is currently recruiting arbitrators for the scheme, due to expand into the rest of England, Scotland and Wales by spring 2000, although it is yet to release its regulations for this, which will then have to be laid before parliament by DTI secretary Stephen Byers.
Arbitrators need not be legally-qualified, although the Acas recruitment advert requested "experienced employee relations practitioners [expected to be] drawn mainly from academia, consultancy and those with experience of employment relations, but who are not currently active in trade union or personnel management roles."
There will be no appeal on a point of law from the arbitrator, although parties can appeal against what they claim to be a biased arbitrator, either to the Court of Appeal in England and Wales, or the Court of Session in Scotland.
To succeed, the applicant would have to prove "serious irregularity" causing "substantial injustice" to the parties, and must have raised the issue during the arbitration itself.
Many employment specialists consider tribunals intimidating for clients, over-legalistic and biased towards employers.
National Association of Citizens' Advice Bureaux social policy officer, Sean Roberts, says: "We think the tests for unfair dismissal cases are weighted too heavily in favour of employers, and it is really difficult to win these cases as employers can justify their actions too easily."
Roberts adds: "Employees can't get high enough damages in unfair dismissal cases to provide a disincentive for employers to discourage them from the type of action which gives rise to these claims."
A possible advantage of the new scheme is it uses a test of "fairness" based on the Acas code of practice not on the criteria used by employment tribunals. This counters the traditional criticism of tribunals that they favour the employer's point of view over that of the employee.
Acas head of information, David Mattes, says: "The overall aim of the new scheme is to simplify the process in view of the fact the number of cases going to employment tribunals is going up and up, and they can be expensive and lengthy."
Mattes adds: "Our desire at Acas is to free the scheme from 'legalism'."
However, critics of the new scheme have pointed to the fact that arbitration proceedings will be held in private and that the arbitrator will have no power to compel parties to reveal evidence, although he or she can make inferences from refusal to disclose documents. chair of the Employment Law Committee of the Law Society.
Employment law solicitor, Isabel Manley, a part-time employment tribunal chairman and solicitor at London firm Deighton Guedalla, says: "I am concerned the employee will be at a disadvantage in the Acas scheme since the arbitrator may fail to spot points in law, particularly new European legislation."
Manley adds: "Once a party opts for arbitration they can't opt out again."
The changes could, however, play a vital role in coping with the increasing number of employment disputes.
A report by Government watchdog, the Council on
Tribunals, released earlier this month, predicts an increase of at least 6,000 employment tribunal cases this year, a rise of 7 per cent, due to European working time rules and the impending minimum wage and whistleblower laws.
Employment lawyers have since demanded the Treasury increase funding for employment tribunals to cope with the surge of cases, as reported by The Lawyer (11 January).