Working through tribunal changes

After a considerable amount of work, the Government has finally introduced new rules for employment tribunals this week. 

There are three separate strands to the new regime, which came into effect on Monday (29 July). The most controversial is the introduction of fees of up to £1,200 for entry to the tribunal. This has provoked widespread debate and rebuke from trade unions in particular, who have been allowed a petition for judicial review against the changes which is timetabled for October.

The second and arguably most fundamental change is to the rules themselves. In December 2011, a working group consisting of former Employment Appeals Tribunal president and now Court of Appeal judge Nicholas Underhill, president of the employment tribunals of England and Wales David Latham, president of the employment tribunals of Scotland Shona Simon, Brian Napier QC and Watson Farley & Williams partner Angharad Harris set about redrafting the rules.

Harris explains: “The rules had been cumbersome and complex so the idea was to look at them from scratch and make them simpler and easier to use.”

Initially, the new rules were set to launch in April this year, with the changes to fees being announced later as part of the Government’s wider review of costs. However because the costs change affected the new rules, it was decided to delay them and launch them in line with the cost reforms.

Harris feels the efficiencies that the reforms introduce have been to some extent lost in the debate over fees. She argues the new rules simplify the process, make it easier to strike out vexatious claims sooner and generally introduce a level of efficiency to the system which stakeholders had been requesting for some time. The changes give judges new powers to sift claims, and if necessary strike them out earlier in the process. They also introduce time limits for employers to bring counterclaims.

The third element of the raft of changes will be introduced next year and builds on the work already done on the new rules to encourage parties to resolve issues earlier and, if possible, without entering the tribunal system at all. As of April 2014 claimants will be obliged to enter their claim via the Advisory Conciliation and Arbitration Service (ACAS). The idea is that ACAS will encourage mediation on an issue and only refer it to a tribunal if it cannot be resolved that way.

As with similar changes to family law, it is not obligatory for claimants to take up the offer to mediate but they must have been advised of it as a first step. If they refuse to mediate, ACAS will issue a certificate enabling them access to the tribunal.

Of course, in making al these changes, it is also hoped that vexatious claims will be weedled out of the system earlier on, and the introduction of fees plays a part in that. With clearer rules outlining what does and does not qualify as a claim and a cost to pursue it, hopefully only meritorious claims will be entered into the system – those that can’t afford the fees will, the Government says, have them waived and at the end of the case fees can be reclaimed from the losing party. Harris raises some concern over the fact that the three strands of these reforms were developed individually. She says there seems to be some scope for the individual elements to contradict each other.

For instance, if a claimant has already paid to enter a claim, will they really take up ACAS’s offer to mediate? And if the new rules already simply the system and give judges increased powers to encourage parties to settle, is the addition of the ACAS system really necessary?

As with all reforms concerning litigation it will be some time before we know whether the new-look employment tribunal system works as it was intended. Harris says she remembers a time when tribunal judges routinely looked at the pleadings of a case and recommended the parties step outside for a “little chat” before proceeding, but that over time judicial confidence had eroded. They were now shying away from making such suggestions in case it was later perceived that failure to mediate had a bearing on the judge’s decision.

“I think over time we will see the judiciary more comfortable about taking decisions and addressing issues earlier in the process,” Harris concludes.