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
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.