Employment tribunal reforms will 'impede access to justice'
Government proposals to reform the employment tribunal system will have the greatest impact on the poor and will impede access to justice, employment lawyers have warned.
Clive Howard, RJW
Business secretary Vince Cable unveiled a series of measures aimed at driving down the financial burden on the employment tribunal.
The qualifying period for employees to be able to bring a claim for unfair dismissal will increase from one to two years while a tribunal fee will be introduced for claimants.
Russell Jones & Walker partner Clive Howard said any reform proposals would do little to help a resource stricken service.
He said: “The existing system, albeit creaking with the strain of a lack of personnel, works well. What’s needed is additional resource to make sure that the existing system is given every chance to work at its best.
“The introduction of a tribunal fee to be imposed on the claimant will raise an additional barrier to perfectly bone fide claims and will disproportionately affect the less well off.”
Thomas Eggar partner Esther Smith added: “The increase in the qualification period for claiming unfair dismissal, from one year to two, is most unlikely to make any positive impact.
“Those people with between one and two years’ service will still issue proceedings for other claims, such as discrimination or will try to argue that their dismissal falls within one of the categories for which no qualifying period of service is needed.”
The government consultation includes plans to increase disclosure obligations on the claimant and withdraw expenses payments in an effort to encourage settlement. Employers, meanwhile, will face heftier penalties if they are found to be in breach of employees’ rights.
Plans for compulsory mediation for all parties have also been mooted. Such proposals echo the short-lived Statutory Disciplinary Dismissal and Grievance Procedures, which were scrapped in April 2009, Howard claims.
“The outcome of these procedures was extra layers of burden, hours, costs and disputes and no reduction in claims in the tribunals,” he said.
Employment lawyers’ reaction:
7 Bedford Row barrister Smair Soor: It’s worth remembering the background to the change in the length of service rule in the first place, ie, the continuous employment you have to have clocked up before being able to bring a claim. Back in 2000 the limit was two years, but stats were presented that showed the rule was capable of indirectly discriminating against women as, on the evidence, they were far less likely to be able to show 2 years continuous employment than men. This was why the limit was changed to one year. Quite what’s changed between then and now remains a mystery. If the Government is keen to reduce the number of claims that qualify for Tribunal, that’s one thing – but to do so at the expense of women being able to assert their rights is clearly wrong.
Jones Day partner Mark Taylor on no tribunal claims for two years: This change is likely to make little difference - most employers will decide whether an employee is any good within 12 months, making the qualification period two years will probably not materially change the numbers of claims. In reality, all that is likely to happen is the peak in dismissal rates which currently occurs immediately prior to employees qualifying for unfair dismissal protection will move from the eleventh month of employment to the twenty third month. This change may also encourage more employees to put in spurious discrimination or whistle-blowing claims where there is no length of service requirement.
Glaisyers Solicitors partner Russell Brown: While he reasoning behind the reforms may be well intentioned and supportive of employers, I would question their practical effect. The proposal that all tribunal claims be lodged with ACAS for one month prior to reaching the tribunal is aimed at increasing the chances of the employer and employee resolving their differences without the need for a tribunal. A similar concept was introduced in 2004 when statutory grievance procedures forced employees to file a written grievance and follow a formal grievance procedure process before proceeding with an employment tribunal claim. This procedure was scrapped in 2009 with the general consensus that it served only to create a niche area of litigation in itself.
Readers' comments (10)
Anonymous | 27-Jan-2011 1:09 pm
Of course it would also result in reduced fees for lawyers wouldn't it?
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Anonymous | 27-Jan-2011 3:06 pm
Not really because they'll be litigation about why there shouldn't be litigation and arguments about whether the mediation was right and texting of such mediation. All this will help me pay the mortgage.
But that won't help victims of employment disputes who are most likely to be on low income and unable to afford the costs of going to court.
It is all too easy to blame lawyers and say we complain because we are worried about the cash flow but that is rubbish. If we want to line our pockets we would be working for the corporates who pay the big bucks to frighten the claimants off not for the claimants who rarely have the cash to fight the big boys.
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Peregrine Mason | 27-Jan-2011 5:30 pm
A two -year rule is unlikely to cause any real increase in the number of spurious claims requiring no qualifying period of service. There are quite enough spurious claims already. As any employment lawyer will tell you, as a matter of course, this is what happens: if the claimant is female, in goes a sex discrimination claim; if from an ethnic minority, it' s a race discrimination claim. If the claimant is also off sick, add a disability claim. And if it's an elderly gay ethnic minority claimant with a religious bent, well, we a have a veritable cornucopia of claims. The "now, what else can we throw in for good measure?" tactic is alive and kicking.
What is needed is a more robust costs approach by tribunals towards spurious claims. Everyone in the business knows that the tribunals are full of nuisance claims entirely without merit, but advanced in the hope that the employer will stump up at least some money just to get rid of the claim. After all, what do the claimants have to lose?
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Anonymous | 27-Jan-2011 8:30 pm
I think the most sensible change of all those proposed is to allow employment judges to hear more cases sitting alone. In my experience, the vast majority of the "wing members" add nothing positive, usually saying little or nothing, and agreeing with everything the employment judge says. When a wing member does contribute, there's a good chance their contribution will cause confusion and frustration with irrelevant questions.
It's interesting to note that most of the proposed changes would bring the ET system very close to the New Zealand model, (except for the qualifying period increase - there is no such compulsory period in NZ).
In NZ there is compulsory mediation (save, essentially, where it would achieve nothing) and that works relatively well. A lodgement fee is also charged. It is NZ$70 - to put that in perspective, the national minimum wage is NZ$12.75 an hour. The fee is modest and manageable for almost everyone. The Applicant recovers it from the Respondent if the Applicant wins.
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Anonymous | 28-Jan-2011 8:39 am
The system is discouraging enough as it is. My other half was dismissed illegally last year. For all the merits of her case - including three solicitors advising her that her claim was virtually 'air tight' - she refused to proceed to tribunal because the process was frightening and she did not wish to be belittled by her previous employer.
If you throw in a longer qualifying period and a fee (what level of fee?) then this for some will be an enormous deterrent.
On another note surely the tribunal fee cannot be expropriated from anybody who is dismissed and ends up on qualifying benefits? It don't deter the well paid or those in receipt of welfare - it will simply deter the LOW paid. The whole policy is a farce.
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City Gent | 28-Jan-2011 4:57 pm
Peregrine's peregrinations are spot on. There are far too many speculative claims brought solely as a form of extortion, knowing they will cost the employer heavily, win or lose. Most employers take a commercial view and submit to the extortion rather than fight it.
There is also no justification for allowing discrimination claims to be made so easily, particularly as the burden of proof is effectively on the employer.
There should be a complete exemption for small employers, who should be free to employ whoever they want to, and discriminate to their hearts' content. A sensible employer will not discriminate against someone who's genuinely worth employing.
All this nonsense is EU inspired. The overpaid Eurocrats have nothing better to do with their time to dream up yet more ways of strangling the EU economies and encouraging even more employers to move their businesses to less hostile environments.
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Anonymous | 9-Feb-2011 1:58 pm
I was the victim of a seriously skewed judgement last year and had to represent myself.
A bent large multi-national and their legal team against a righteous and wholly honest individual.
If we got rid of the judges and lawyers completely and replaced them with 3 retired lay people of good character, we may get what we don't get now.
Justice.
And at a fraction of the cost!
Not a judge and a solicitor playing a game of 'you don't know the law do you, lay person.'
Maybe not.
But I do know how to be honest and could teach a few judges and solicitors a thing or two in that department.
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Anonymous | 1-Oct-2011 8:19 pm
What worries me is how large corporations could start behaving like companies in Asia where labour have no rights. Corporations could basically employ labourers for less than two years and then fire them at will for any trumped up charge or misdemeanour. They could then employ new staff at the base rate and start the process all over again, firing the newbies before the 2-year deadline is reached. Robinson's Malls in the Philippines for example give their new employers a 5-month contract and then let them go. This keeps wages down and ensures that workers do not join together, form a union, and kick up a fuss. Without a fair minimum wage and local union rep to support them, the poor Filipino workers are left to sink or swim once the 5-month contract is up. Britain under the leadership of David Cameron seems to be heading down the same road. I'm already making plans to emigrate.
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Anonymous | 14-Dec-2011 5:31 pm
The state is trying to employees access to justice as the current system is biased in favour of employers as they know that employees cannot get effective legal representation at present and now that they have to fork out fees would make it impossible for anyone to take on the crooked employers, who are not always SME's but large corporate employers such as Local Authorities
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anon | 23-Jan-2012 7:59 pm
The person who states that wing members add nothing positive is quite long their role is not to cross examination but to ask questions where clarification is needed IF they agree with the ETJudge its because it follows a lengthy discussion and reviewing the case before them and the judge will offer a guidance in law SO PLEASE DO NOT UNDER VALUE THEIR ROLE with such a sweeping statement
Their role is important they bring work place experience and often hold experience that ET judges simply do not hold and have often been grateful and have attached importance to their input
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