If I could reform the Employment Tribunals system

This blog came to mind randomly when I was walking in the woods. This is not allowed – thinking about work and the law when I am in my quiet place. But it just arrived and there was nothing I could do other than to remember it and write it down when I got to my desk.

The first thing I want to say is that nothing in this blog implies any criticism of the work the people in the ETS do: the clerks and administrators, the judges, the lay members. They do a splendid job of keeping the wheels turning in a system that has been hideously under-resourced for years and can only be commended. But, if I had a magic wand what would I do?

There are whispers, again, about the introduction of tribunal fees. I am not in favour of this but think that if the system does need funding there are better ways to introduce fees for certain aspects of the service. 

For example, if a party wants to make an application for specific disclosure in a complex case: attach a fee. If a respondent wants to request an unless order or a strike out: charge a fee.

I am against issue fees because these disproportionately impact people bringing lower value claims and those who are unrepresented – litigants in person. The ETS was designed to be a system the lay person could use and I am clear that it should remain this way. There are many perfectly intelligent users of the system who are able to bring their own claims without the expense of lawyers and anything which stops them from doing so can only be a bad thing in my opinion. 

One of my ideas is about having tracks for cases similar to the civil court system. There really should be a fast track for simple cases like unlawful deduction from wages. Users should not be made to wait for months and in some cases more than a year to get a hearing about money they are owed. 

These cases require little evidence and could be disposed of very quickly with a short CVP (video platform) hearing. If employers knew that such claims would be quickly treated they might be better at resolving them and then the ETS would not need to deal with them at all. Claims can be sifted by type and allocated to the most appropriate track. Why not follow the civil model?

Another issue that I think could and should be fast tracked is cases around reasonable adjustments. Is it really right that an employee asking for adjustments should have to wait an age for the ET to decide what is reasonable? I don’t think so and again fast tracking these claims or having a mechanism to make an interim application would unblock the system. 

It might also encourage employers to be more helpful. Complex discrimination cases do take a long time to prepare for hearing. These could be allocated to a track that allows practitioners and users to properly prepare the case.

I am all in favour of limiting bundle size and witness evidence. Many cases are over-lawyered with hundreds of pages of documents that the tribunal never even views. It would also assist claimant lawyers if document numbers were limited because often litigants want to provide every last document. Some judges already operate page limits and I think this can only be a good thing.

In Switzerlan,d pre-claim conciliation for employment claims is mandatory but it goes further than the system we have here via Acas. I have used the system when acting as a litigation friend for a client who was unable due to serious mental health issues to appear in court.  

Acas EC can be bypassed entirely and in many cases is reduced to a paper process but in the Swiss system both parties must appear before a judge before the claim can proceed. If the claimant does not attend their claim will be struck out. If the respondent does not attend, default judgment may be given. Judicial mediation in our system is still an opt-out rendering it useless to some extent in managing the number of claims that proceed. I would also wish to see mediation conducted by trained mediators not by judges. The two skill sets are entirely different. 

These are just some musings. I could go on forever. I think it worth looking at what happens in other jurisdictions and thinking about structural changes to the system, not just using fees to deter claims. If the job of reviewing the system was given to practising users and lawyers rather than a civil servant with no experience of tribunals we might get a more useable system that makes sense. A pipe dream?

This blog was written by Karen Jackson, Partner & MD of didlaw.