The complaint has often been made that Employment Tribunals (formerly known as Industrial Tribunals) have been hijacked by lawyers and become a rival court system, bound in the same way by legal precedent and procedural rules. There is much truth in this complaint as legal precedents and arguments are deployed in a typical tribunal hearing, no less than in high court litigation.
The major reforms of civil litigation introduced in April 1999 initially had no application to Employment Tribunals. That was rectified in July 2001 when new rules were published incorporating certain key Woolf concepts, such as the overriding objective of achieving justice, intended to streamline procedures. Another important change was the introduction of an ACAS arbitration scheme as an alternative to a full scale unfair dismissal hearing, if both parties agreed to submit to arbitration. This was designed to afford a less legalistic and formal alternative, the availability of which represented a recognition of some of the failings of the existing system. But neither the new rules, nor the arbitration alternative, seem to have made a huge difference in practice.
Against this background, the DTI set up an employment tribunal system task force in October 2001 which was asked to make recommendations on how the system could be made more efficient and cost effective, in particular for individual applicants and small businesses. It was set an overall objective of ensuring that the employment tribunal system reflected 'the needs of its users in the changing environment in which it operates'. The task force reported at the end of July 2002 with 61 recommendations, ranging from changes in internal procedures, improvement in guidance material and user consultation to substantial investment in staffing and technology resources. In other words the system is to be more 'user friendly' and efficient. A sub-text is that it ought to be possible to find one's way through a tribunal claim without recourse to expensive lawyers.
The recommendations of the task force have been accepted in principle by the Government and widely supported by unions, employers, the judiciary and indeed ACAS. It can therefore be expected that they will be implemented. But what do they amount to and what differences will they make in practice?
One key aim is to facilitate earlier resolution of disputes. This is, of course, consistent with the approach of both the Government and the judiciary to litigation generally. To that end, there will be a requirement of early disclosure of information sufficient to enable the parties to assess the strengths of the case. We can expect there will be a specific encouragement to consider reaching settlement built into the procedure, with another plug for mediation. This is a welcome move as mediation is being used successfully to resolve many employment disputes.
These changes also go hand in hand with the new unfair dismissal rules, introduced by the Employment Act 2002, which will come in on 6th April 2003. They are designed to promote proper use of disciplinary and grievance procedures in the workplace, in the hope that that will reduce possible litigation, and they introduce a penalty, in the form of higher or reduced compensation, where the employer or the employee fails first to use those procedures. Many of the recommendations are designed to reduce inefficiencies in the present system. One frustration for many years has been different practices in different regions, and this will all change. There is a lot about computerisation, minimum standards of facilities and accommodation at tribunals and so forth.
The number of tribunal claims has risen inexorably, more than doubling during the 1990's. The real test of these reforms will be whether there is a significant decrease in the number of contested hearings from the present rate of over 30,000 per annum.
For further details please contact Anthony Fincham at anthony.fincham@cms-cmck.com or tel +44 (0)20 7367 2783.
