Reforming Employment Tribunals: new Government proposals
Employment Tribunals were designed to be accessible, informal and cheap for users. The government has announced the time is right to update the system because it has not kept pace with changes in society and the way in which users want to interact with it and has published a consultation paper proposing changes to Employment Tribunal procedures.
The reforms, which are part of a major programme of changes to the justice system, are aimed at enabling citizens to obtain justice more swiftly, reduce complexity and reduce costs to the taxpayer. Modern technology is intended to play a large part in ensuring the new system will be able to respond promptly, effectively and proportionately to the needs of different users.
The proposed changes include digitising the whole claims procedure so that claims are made and processed online, and communications between individuals and the Tribunal are made electronically. The consultation paper suggests that some simple claims may be suitable for online decisions, while acknowledging that complex cases, such as discrimination claims, would not be.
The Government also plans to allow a broad range of routine tasks related to procedural decisions, which do not determine the outcome of the case, to be delegated from employment judges to case workers. There is an important safeguard here that an employer or employee unhappy with a decision taken by a case worker may apply to a judge to consider the matter afresh. A range of judicial functions are already undertaken by case workers in other courts and the Government hopes this change will increase efficiency by allowing employment judges to focus their legal expertise on the complex issues that require it.
The next proposal relates to tailoring the composition of Employment Tribunal panels to the needs of the case. Panels usually consist of an employment judge and two lay members. The Government’s view is that it is no longer appropriate or sustainable for non-legal panel members to be used in all cases as a matter of course. It proposes transferring the power to decide panel composition from Government Ministers to the Senior President of Tribunals, bringing Employment Tribunals into line with other Tribunals in the justice system. The consultation also suggests “removing any unnecessary restrictions on how a particular type of case must be determined”, so that simple cases are resolved by simple methods.
The consultation does touch on wider reform considerations, such as the impact of the controversial introduction of Employment Tribunal fees in July 2013. Various judicial review proceedings have challenged their introduction and the Supreme Court is due to hear a further appeal this month. The Government announced a post-implementation review in June last year but, despite public pressure, the Ministry of Justice has still not published the findings of that review. However, the consultation paper states that the Government “will publish the conclusions of the review in due course and any adjustments to the fee structure will be brought for consultation”.
The paper also confirms that the Government is committed to transferring the functions of Scottish Employment Tribunals to Scotland, but no specific timings are given for this as when it will happen has yet to be agreed between the UK and Scottish Governments.
The consultation closes on 20 January 2017. Following that, some changes will be needed to primary legislation to bring about these reforms so the timetable for implementation is likely to be elongated and will depend on the availability of parliamentary time.
The Government seems determined to move forward with its reforms of the judicial system to bring it into the 21st century, and while the proposed reforms appear largely sensible, it remains to be seen how effective the delivery of the IT systems needed for an online claims service will be – the public sector record on implementing new computer systems is not good.
Many Employment Tribunal claims are complex and involve not just a simple allegation of unfair dismissal but also, for example, discrimination or whistleblowing. The suggestion that the system can be made significantly more efficient by dealing with simple claims purely online might prove to be mistaken.
This article originally appeared on People Management and is reproduced with kind permission.