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This year has been one of reform for employment lawyers, with several long-anticipated changes to employment law coming into effect.
The service requirement for bringing unfair dismissal claims to employment tribunal has been reduced to one year. With the maximum compensatory award for claims set to rise to £50,000, tribunal cases are likely to become a growing financial issue for employers. Add to this the growth in awards in discrimination claims and it becomes clear that calculating an employer's potential loss in connection with employment claims is an important issue for lawyers.
Unfortunately, employment tribunal procedure is not designed to aid employers in identifying their financial exposure at an early stage in proceedings.
Given the dramatic changes that have taken place in the rest of the UK court system in the light of the Woolf Report, it is high time for the employment tribunal's position to change. The court procedure (post-Woolf) aims to speed up the litigation process to make it easier to understand and promote settlement where possible. All these should also be aims of the employment tribunal.
A solution might be to oblige applicants to provide details of their loss of earnings at regular intervals while litigation proceeds. For example, applicants could be required to submit details of their loss together with efforts made to mitigate this loss in their initial application and then, on request, at three-monthly intervals thereafter. This should not put a heavy burden on applicants but would enable employers to enter informed settlement negotiations at an early stage.
Alternatively, there could be no obligation at all on the applicants to provide full information except where a reasonable request has been made by the respondent. The employment tribunal would need to be empowered to make orders forcing unhelpful applicants to provide the necessary information.
Although the proposals would not deal with all issues (for example, awards for injury to feelings to represent the tribunal's view of an applicant's suffering) they would surely offer a sensible step towards streamlining employment tribunal procedures.