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Justice in a time of austerity

Meredith Hurst Thursday, February 20, 2014

This post might sound like the title of a Charles Dickens novel but it is actually taken from the opening statement of the 2014 report of the Senior President of the Tribunals. It is not all doom and gloom but rather a rallying cry to those who welcome innovative and more effective ways of offering legal services. There are lessons for us all in the 92 page report.

The report encompasses an analysis the tribunal structure generally including family, land and employment. Here we distil the salient points in so far as they relate to the Employment Tribunal and Employment Appeal Tribunal system.

We have witnessed many groundbreaking changes to the employment law landscape over the past 18 months. There have been several consultations resulting in a raft of changes to employment laws, statutory instruments and new legislation including the Enterprise and Regulatory Reform Act 2013. The provisions of the act are being introduced gradually and implementation of further changes will take place throughout the course of 2014, including the introduction of employee shareholder rights, TUPE reforms, flexible working and shared parental leave.

The report states that changes to the procedure for issuing and responding to clams caused some anxiety, but any initial teething problems have been ironed out. What we have noticed is that issuing claims is more cumbersome whilst responding to claims is far easier. 

The introduction of employment tribunal fees has also reduced the number of claims issued, following an initial surge in claims lodged immediately before the fees came into force. The report continues by stating that only time will tell. It will indeed but at the coalface, employer clients are already reporting a drop-off in the number of claims issued.

The change to the qualifying period for bringing claims of ordinary unfair dismissal from one to two years, has also hit employees hard. We are receiving more enquiries from employees dismissed who have in excess of one year's service and who would otherwise have been in a position to bring claims but who cannot. Such clients will now have to limit their claims to loss of contractual notice and benefits unless they can assert whistle-blowing, discrimination and the like.

Despite this, according to the report, what has not changed is the complexity of the employment law jurisdiction and the type of claims that arise before the Employment Tribunal. Long and complicated hearings are common whereas many smaller claims do not proceed to hearings.

Interestingly, the average awards in tribunals have not increased over the years. The report states that there is a misconception among businesses that large awards are common when this is simply not the case.

One particularly striking statistic is the 70% success rate of judicial mediation. This has led to savings in hearing days and is a popular means of resolving disputes.  We have practical experience of this in respect of cases which would otherwise have rumbled on to tribunal and led to potential disappointment for both parties.  In one such case, the employee client achieved three times the anticipated settlement value.

The groundbreaking change to the Employment Appeal Tribunal system, is introduction of fees, £400 for issuing an appeal and a further £1,200 (should a full hearing of the appeal be ordered). The report asserts that these fees may not be easy to find and may make appeals unprofitable, particularly when coupled with the cap of one year's salary where the claim is one of unfair dismissal. Having said this, the number of appeals does not appear to have markedly reduced.

Are we in hard times or can we afford to have great expectations? As the Senior President postulates, only time will tell.