Employment Tribunal Updates

Rhiannon Bail

Although Employment Tribunals have had a bit of a makeover in recent years, particularly with the introduction of fees and Acas early conciliation, there have still been calls for more radical reform. Whilst the changes to date are seen to have caused a downward trend in the number of claims (as seen below in the Quarterly Statistics) and have raised some concerns generally in respect of access to justice, for many large employers the impact of this reform will have been limited. Early conciliation has allowed companies to have a ‘heads up’ on potential claims and this, along with the introduction of fees, has given employees the opportunity to think twice about bringing a claim.employment tribunal

In the latest developments, Employment Tribunal judgments are due to go online and the future of the Employment Tribunal system has been further challenged with calls for potentially integrating the Employment Tribunals into the civil courts structure.

Online Judgments

The HM Courts and Tribunal Service recently announced that in Autumn, Employment Tribunal judgments will be made available on a new online database, rather than only being made available to third parties by application to Bury St Edmunds. This will make judgments much more readily and quickly available, making it all the more important that employers are well prepared with a clear press strategy in place, in order to respond to any public criticisms or allegations attracting media attention.

Quarterly Statistics

The Ministry of Justice’s quarterly statistics for the period January to March 2016 have been published, and reveal that the downward trend in single claims continues. The rise in multiple claims also continues.

  • 4,200 single claims were received (down 1% since 2015) and 25,100 multiple claims (up 56% since 2015, although this was mostly due to a large airline case concerning working time and unauthorised deductions)
  • 3,800 single claims were disposed of (down 6% since 2015, most likely due to a reduction in Tribunal sittings and in claims following the introduction of fees and Acas early conciliation. In total 9,300 multiple claims were also disposed of
  • 2,189 issue fee remission applications (62% of which were either fully/partially successful) and 648 hearing fee remission applications were submitted (over 85% of these were either fully/partially successful)

The future of the Employment Tribunal

Following the interim report published by Briggs LJ back in January this year, the final report published in July re-visited the way forward for the Employment Tribunal. As in the interim report, Briggs LJ discusses three options:

  1. leaving the Employment Tribunal and the Employment Appeal Tribunal (the EAT) “uncomfortably stranded” between the civil courts and the main Tribunal service;
  2. bringing both Tribunals under the civil courts structure; or
  3. making both Tribunals part of the Tribunal Structure (as First and Second Tier Tribunals).

Although Briggs LJ refrains from making any firm recommendations, he does offer some brief observations based on consultations/feedback. For instance, he rejects the concern that if Tribunals were brought within the civil courts structure, the Civil Procedure Rules would automatically apply, something which he believes would be “a retrograde step”. He comments that there was no significant support for leaving the Tribunals in their current state, but that the concept of an Employment and Equalities Court gathered the most support: a civil court with specialist judiciary, forming part of the civil structure, but with exclusive jurisdiction in relation to employment and equality disputes, featuring its own rules, procedure and culture, and with a route of first appeal to the EAT as a specialist court. He also notes that the question of giving the EAT a first instance jurisdiction of its own met with a mixed response and that, given these differences of opinion, a top-tier of employment and equalities work directed towards a court with judges of High Court seniority and experience, and with a right of first appeal to the Court of Appeal, may be an option.

It remains to be seen how exactly the Government will react to these recommendations, but it does seem inevitable that further reform will follow.

Comments published on Employment Talk do not necessarily reflect the views of Allen & Overy.

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