Employment lawyers question whether tribunal system is ‘fit for purpose’

September 22, 2015


Bridget Tokhai,  13 August 2015

But other dispute resolution methods are viewed as viable alternatives.

This a momentous time of change in employment law. Some practitioners argue that the introduction of tribunal fees (by the Ministry of Justice), the requirement for claimants to register for Acas early conciliation and the 2013 tribunal rule changes (both from BIS) has had the effect of curtailing access to justice, an undesired consequence of the left hand not knowing what the right hand is doing. Others say the current system is more efficient, straightforward and economical. For employers, and employees from vulnerable or low-income groups without legal representation, these shifts in the legal landscape are unsettling.

The Employment Lawyers Association (ELA) earlier this year asked for members’ views on the future of employment tribunals, alternative dispute resolution and whether the current framework was ‘fit for purpose’.

Alternative dispute resolution (ADR) was the ‘buzzword’ of a wider government policy on encouraging employers and employees to cooperate more on resolving workplace conflicts in order to remove barriers to job creation and economic growth. Under the 2013 rule changes, employment tribunals were given the power to encourage employers and employees to use ADR services wherever practicable and appropriate. Incorporating it into the employment tribunal machinery signalled government’s clear intention that it should play an essential role. However, the findings of the ELA survey indicate a disconnect between policy and practice.

Members’ opinions were relatively divided on whether early conciliation had proved a success although out of those dissatisfied with it, 42 per cent typically represented claimants in tribunals. Anecdotal evidence from members identified a number of key concerns including the complicated time-limit rules, and that the fees regime had disincentivised employers from engaging in early conciliation because they saw fees as a sufficient deterrent on their own to claimants taking a case forward. For an employee’s perspective, early conciliation was seen as yet another hurdle to get over.

The survey also asked about judicial mediation. This has been available since 2009 and involves employment judges acting as mediators. It is an alternative to an employment tribunal but not to Acas conciliation, and cases suitable for mediation are usually identified at a preliminary tribunal hearing. ELA members on the whole (41 per cent) were unconvinced the scheme had been successful. Anecdotal evidence suggested the £600 fee payable solely by the employer and ill-equipped employment judges were largely to blame for this.

Members were relatively supportive of the introduction of other forms of dispute resolution, such as early neutral evaluation. This is not currently available via the employment tribunal regime, but the current model is for an employment judge to act as an evaluator, hearing evidence on the facts and legal issues involved and providing an initial assessment on the merits of a case. The format is more of a ‘quasi-hearing’ with the aim of providing an objective and independent assessment of the case, enabling employee and employer to move away from unrealistic positions and focus on the key issues. The outcome is usually non-binding.

Crucially, although there was a general recognition (46 per cent) that the current ADR offerings were beneficial to the tribunal process, questions were raised over the extent to which these services were meeting the needs of tribunal users, particularly in enabling access to justice.

The House of Commons Justice Select Committee recently announced an inquiry into the fees and charging regimes in the courts and tribunals. It will look for evidence on the take up of ADR. This presents an opportunity for government departments to engage in a joined-up dialogue. Let’s hope there is recognition that for ADR to offer a genuine alternative to litigation, services must be intuitive and adapted to the needs of tribunal users, providing a clear gateway to exercising their fundamental legal rights.

Bridget Tokhai is solicitor at Weightmans and a member the Employment Lawyers Association’s ‘Future of employment tribunals’ working party.

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