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Employment Tribunal Reform – Considering the Government Response

In February, the Government delivered its response to the consultation on Employment Tribunal Reform that was published in December 2016 looking at 4 areas –

  • Modernising the handling of employment tribunal claims
  • Delegation of judicial functions to caseworkers
  • Tailoring the panel to the needs of the case
  • Proposed approach to implementing reform in the Employment Tribunal System

Following consultation, the Government’s conclusions were published in February.

So what does the government propose?

Modernising claims handling The Government has concluded that it will “…digitise the whole claims process so that users can digitally start a claim, track progress, provide evidence and information, and participate in innovative resolution methods if they can and wish to do so.” The intention is to speed up the resolution of disputes and, in this interconnected world, allow tribunal users more flexibility about when, where and how they access the tribunal services. Automatic determination of cases using technology is not under consideration as part of these reforms, although digitisation may extend to some case management decisions. Delegation to Claims Handlers Despite concerns raised about how practical the involvement of claims handlers would be in the context of employment law, the Government says it will make the amendments necessary to the Employment Tribunals Act 1996 so that the Tribunal Procedure Committee can make rules concerning the delegation of judicial functions to Her Majesty’s Courts and Tribunals Service staff. Panel Composition While recognising the value of the lay members of the employment tribunal, the Government sees the appropriate level for deciding panel composition to be with the senior judiciary in the Tribunal system, and will progress this. Procedural rule making In line with the consultation and many of the responses, the Government has indicated that it will make the necessary legislative changes to expand the Tribunal Procedure Committee to include an employment judge and an experience employment practitioner and delegate procedural rule-making to the Committee.

Why is reform necessary?

The consultation in relation to the Employment Tribunal Service was published in the context of an expressed intention to transform the Justice System as a whole, making it easier for individuals to access, to navigate and resolve their issues accordingly, against the backdrop of the unified Tribunal system. In the specific context of the employment tribunals, the consultation document recognised their unique position, but flagged that the service had not kept pace with developments in relation to how users want to be able to access them.

What will the reforms achieve?

The Government response hasn’t been greeted by any great noise, either of support or dismay. The stated aims of the proposals – introducing efficiency and increased accessibility, and delegating powers to the most appropriate level – appear beneficial, but the test will, as always, be in the execution, and the practical impact both on the parties involved in disputes and their representatives. Many of the responses to the consultation raised concerns of under-resourcing which would cause problems with a digitised system. For some, an increase in digitisation could also limit rather than facilitate access to the tribunals. Rather than increasing efficiency, the delegation of responsibility to caseworkers also has the possibility of causing delays as caseworker decisions are challenged and subject to review. This is particularly so in the context of a system where many are unrepresented. It’s also of potential concern that delegating the composition of tribunal panels to the Senior President of Tribunals could further reduce the use of lay members. We also wait for the results of the consultation following the review of the introduction of Tribunal fees. There has been a significant reduction in the number of tribunal cases brought since the new fees regime was introduced in 2013, but the Government’s review finds that ‘nothing has prevented people from bringing claims’ and welcomes the indication that more people have chosen to resolve their disputes without making a claim. The new round of consultation is broadly around the Help With Fees scheme. As the impact of these reforms become clear, we’ll bring you further updates.