Tribunals in peril

Proposals to integrate employment tribunals into the court system and scrap lay members are misguided, argues Stephen Levinson.

This article examines two recent developments in the world of employment tribunals. First, the proposal to strip these tribunals of their special identity, as made by Briggs LJ in his interim report on the civil justice system published in December. Second, the new regulations, described as unnecessary by the

Employment Lawyers Association and most consultees, which will come into force on 6 April 2016 on postponements of hearings.

Briggs report

Briggs LJ has succeeded where most governments fail miserably. He has managed to unite the views of both the TUC and the CBI, which are that a number of his suggestions are misconceived and damaging. Before examining the report, some background is required to provide context.

Background

Employment tribunals have had many critics. In their 50 years, they have been reviewed formally by government and others at least seven times. The general opinion has been that the objectives formulated in the distant 1960s that they should be easily accessible, informal, speedy and inexpensive have become progressively diminished. Nevertheless, it was almost universally accepted in these enquiries that there was a real virtue in maintaining a separate jurisdiction to deal with workplace litigation. It has been seen as a particular benefit that the decision whether individuals have been treated fairly or whether they have suffered a detriment is not confined to lawyers but shared with those who have a wider experience of workplaces.

The practical assistance provided by lay members has consistently been the subject of praise by employment judges. For example, Mummery LJ in Aylott v Stockton on Tees Borough Council [2010] described lay members as:‘… indispensable for the actual experience of industrial relations and of day to day life in the workplace that they bring to [tribunal] decisions.’Then in March this year, Langstaff J stated in Peninsula Business Services Limited v Donaldson [2016]:

‘The assistance of lay members who both have a particular familiarity with salary sacrifice schemes has been invaluable.’

Employment cases were also, until relatively recently, free at the point of access and an award of costs was rare. These last two characteristics were always said to be a counterpoint to the fact that legal aid was never available for advocacy in employment tribunals. Also, the system benefited from the services of the conciliation service, Acas. These attributes were identified by Sir Andrew Leggatt ‘s review of employment tribunals in 2001, when he concluded that:

‘What has rendered them successful has been the composition of the tribunal, the absence of fees and the proximity of Acas.’Since that date, two of these causes of success have been under heavy attack. The introduction of fees has resulted in an unprecedented fall in the number of cases presented, without any impact on success rates, proving that those not bringing cases are not the unmeritorious majority as some politicians had suggested. Second, the category of cases which may be heard by a judge alone has been extended. This has led to a severe downturn in the number of unfair dismissal cases being heard by a full tribunal, even though an application may always be made for a full panel.One the most consistent criticisms of the tribunal system over the past 25 years has been creeping legalism. This was noted as long ago as 1987 in the Justice Report (chaired by the late Professor Sir Bob Hepple) and echoed in 2013 by the CBI in its paper, The right balance: delivering effective employment tribunals, where it complained that:‘Tribunals have become too much like courts, which was never their role.’The distinct nature of employment tribunals was recognised officially when all tribunals were brought together as a separate service in 2006. In a formal written agreement, the Lord Chancellor and the Secretary of State for Trade and Industry decided that although they should be placed within the tribunal service, a ‘separate identity’ should be maintained, which is the current position.Briggs LJ’s suggestions

Without any reference to the reasons for the separate position of employment tribunals and the Employment Appeal Tribunal (EAT) within the Courts and Tribunal Service, Briggs LJ makes six references to what he calls ‘the present unsatisfactory isolation of that tribunal’ in relation to other tribunals and civil courts.He then suggests that the need for lay members no longer exists and they could be replaced by assessors. He says:‘Although at its inception there was good reason for a new statutory jurisdiction to be adjudicated upon by a tribunal with a majority of lay members, the strength of that reason has diminished with the growth of detailed jurisprudence… Moving the two tribunals within the civil courts structure would not deprive them of the continuing benefit of lay contributors, where appropriate. They could well fit the role of assessors. (p.11.14).’Next, he asserts that as the current position of employment tribunals and the EAT is unacceptable, it is necessary to move them. The choices he considers are:

• to leave the employment tribunals (and the EAT) where they are, uncomfortably stranded between the civil courts and the main tribunal structure;
• to bring both tribunals into the structure of the civil courts; or
• to make both tribunals part of the tribunal structure, as First Tier and Upper Tribunals respectively.

The report concludes that the first option is untenable and that the other two options require further consideration.

Observations

Nowhere in the report is there any reference to the reason employment tribunals were originally conceived or to the value of having a separate and specialist forum for employment cases.

The remarks that criticise the location of tribunals within the system are based on administrative convenience. The relevant words are:

‘It leaves both tribunals unsupported by the management structure and resources of either the civil courts or the Tribunal Structure.’

There is no explanation of why this has to remain the case or why resources cannot be redistributed.

It is fairly obvious that at present Briggs LJ would prefer a move to the court system. He gives a variety of reasons to support this argument and qualifies every proposed advantage of the tribunals remaining in the tribunal service. As the Lord Justice has made no reference to the point, possibly he is unaware of the continuing complaints of increased legalism. Those who are concerned about this issue deserve an explanation of how placing tribunals in the courts system will reduce formality. All sorts of points arise: will the cadre of experienced employment judges be diluted, will court dress be required, will rights of audience and the type of hearing rooms be the same, will this affect rules about costs? All of these issues infl uence the ethos of the tribunal and none are addressed; instead the driving factors are cost and the ease of the administrators. Nowhere in the reasoning are the interests of the parties considered.

The idea that the accumulation of precedent has removed the need for lay members is risible. The issues they are there to decide relate to unfairness and discriminatory behaviour. In every case, these questions turn on the facts. Replacing lay members with assessors is also misconceived. Assessors provide advice and reports at the direction of a judge. They have no judicial function and can be directed not to att end a hearing or attend only part of a hearing. A lay member of a tribunal is there to bring the whole of their working experience to the decision-making process and contribute on an equal footing with a judge. All those who have previously enquired into the function of tribunals have agreed that their presence contributes considerably to the acceptability of decisions made, particularly to unrepresented parties and trade unions.

Postponements

The new rules set out in the Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2016 concern the supposed problem of parties obtaining an excessive number of postponements. Under the changes, any application for a postponement should be presented and communicated to the other party as soon as possible after the need has become known. If any application is made less than seven days before the hearing date, it shall be granted only if the other party agrees and:

• it allows a practical opportunity for a settlement discussion; or
• the application accords with the overriding objective.

Alternatively, it can be granted if the application was made because of an act or omission of another party or the tribunal or if it is made ‘in exceptional circumstances’. What all this adds to the existing discretionary powers of a judge is obscure.

Another new rule is that if two or more postponements have already been ordered on the application of the same party, the same exercise has to be followed as if it had been made less than seven days before the hearing.

Finally, if any application is made later than seven days before the hearing, a tribunal must consider whether to make a costs or preparation order.

The transitional provisions mean that no case that was presented before 6 April 2016 is affected.

These regulations have been made even though most of those consulted thought them unnecessary. There was little convincing evidence that there was a real problem. The government said that in the two-year period to March 2013 there were approximately 67,750 postponements but there was no analysis of the reasons. The probability is that many were caused by Acas settlements or the unavailability of judges. If there was a problem, the solution was in the employment judiciary’s approach, which could have been managed otherwise.

It is also rather odd, given the purported reason for the regulations, that no sanction is stipulated for t hose who do not apply as soon as possible but manage to do so more than seven days before the hearing. These rules also risk a culture growing up that parties are ‘entitled’ to maketwo such applications.

Postscript

While Briggs LJ is making proposals which, if implemented, might well destroy the remaining positive elements in the ethos of employment tribunals, the government has been making new law that is all about demonstrating it is improving the system but that in fact is achieving litt le. It would be an improvement if ministers concentrated their att ention where it really matters.

Aylott v Stockton on Tees Borough Council [2010] EWCA Civ 910

Peninsula Business Services Ltd v Donaldson [2016] UKEAT/0249/15/DM

This article was first written for and published by Legalease Law Journals, available at www.lawjournals.co.uk.