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N 20 JULY 2001, the Government announced proposals "to radically reform Employment Tribunals". The proposals are contained in a Consultation Document which invites responses by 8 October 2001. Most interest has rightly focussed on the plan to introduce charges for bringing a Tribunal case. Thompsons will be submitting a formal response. Here we summarise the Government's main proposals and offer some initial comments.
Comment: Employers should be required to adopt discipline and grievance procedures which comply with the existing ACAS code. Tribunal time limits should be extended to enable them to be completed. It would be wrong to prevent applicants from bringing claims until the procedure is exhausted.
Increasing or reducing awards where the employer or the employee had unreasonably failed to take a set of minimum procedural actions in respect of a disciplinary or grievance issue
Comment: It should be automatically unfair dismissal to dismiss without following a proper procedure complying with the ACAS code, or attract a financial penalty. The procedures to be followed by employers need to go beyond the bare minimum specified in the consultation paper. The emphasis should be on requiring employers to have procedures. Employees should not have their compensation reduced where they commence tribunal proceedings whilst procedures are ongoing where the employer has delayed or failed to follow a proper procedure.
Awarding additional compensation to an employee to reflect the absence of a written statement
Comment: This is a welcome proposal. There should also be a fixed sum payable for failing to issue a written statement.
Removing the current 20 employee threshold for including details of disciplinary or grievance procedures in the written statement
Comment: We agree that this is a good idea.
Allowing Tribunals to disregard procedural mistakes beyond a set of minimal procedural actions if they made no difference to the outcome of the case
Comment: This would be a retrograde step. It would encourage employers not to follow procedures. It contradicts the stated wish to ensure matters are resolved through proper procedures in the work place.
Comment: The role of ACAS should remain.
Introducing a fixed period for conciliation
Comment: Employers are likely to use this as a means of delaying the case. The early setting of a hearing date is more likely to encourage settlement negotiations.
Broadening the scope of compromise agreements to match ACAS-conciliated settlements
Comment: The existing provisions on compromise agreements are adequate.
Enabling other organisations to provide conciliation services alongside ACAS
Comment: The role of ACAS as the sole statutory body should be retained. It is open to the parties to involve the services of others if they wish to do so and no change in the law is needed.
Comment: This proposal should be vigorously opposed. It is unfair to applicants. It penalises those who have lost their jobs or suffered a possible infringement of their rights, many of whom will not have the means to pay. A charge of "up to £100" has been mooted. This would prove a significant deterrent to applicants enforcing legitimate rights, especially where the level of compensation is low, for example paid annual leave, unlawful deduction from wages, national minimum wage. It will also add to the costs of employers as the amount will be recoverable from the employer at the conclusion of the case. The cost of lodging multi-applicant cases on a generic issue (for example part-time pensions) will be prohibitive. The amount raised by the tribunal service will be outweighed by the additional administrative costs of receiving and paying out sums on every case. There are serious practical problems: how does an applicant pay a fee on a case which has to be lodged on the last day of the limitation period and which would currently be lodged by fax?
If there is any charge to be levied for the case proceeding to a hearing, it should be confined to the employer as the applicant has already paid a fee and the employer has chosen to contest the case.
The related proposal to cease paying witness expenses should also be opposed. It is often difficult for employees to get colleagues or former colleagues to attend.
Including in awards of costs compensation for the time a party has spent in dealing with the claim
Comment: This is intended to benefit employers. It would enable companies to seek to coerce applicants not to bring cases by threatening them with large administrative costs. It would encourage employers to rack up time and expense in conducting the case.
Changing the presumption on awarding costs in weak cases, so that Tribunals will have to give reasons why costs are not awarded
Comment: Again, this is intended to benefit employers. A costs penalty on an individual applicant has far more impact than on an organisation. Moreover, an employee will often not know the eventual strength of her or his case when submitting a claim as all the necessary information is in the hands of the employer and there is no obligation on the employer to disclose information before tribunal proceedings are commenced. Employees have to submit claims within tight time limits to protect their position. The current costs provisions under the recent rule changes already enable costs to be awarded where a case is pursued when it did not have reasonable prospects of success.
Enabling Tribunals to make orders for wasted costs directly against representatives who charge for their services
Comment: This should be applied against the many "employment consultants" who often conduct cases in a way which adds to cost unnecessarily, as well as to solicitors and barristers. It is right that it should not apply to trade unions, CABx etc.
Enabling Presidents of Tribunals to issue practice directions on procedural and interlocutory issues
Comment: Consistency of practice would be welcome.
Introducing a fast track for certain jurisdictions with either no or a short fixed period for conciliation - this could include a written determination if both parties agree
Comment: All cases should be listed for a hearing expeditiously to encourage early resolution. A conciliation period would lead to additional cost and delay. Written determination would be acceptable where the parties are represented or have been independently advised as to the consequences.
Registering applications publicly only once the claim has gone through the conciliation period and is going to a hearing and the Government invites views on whether to publish the particulars, the complaint and the response, on the public register
Comment: This should be seen in the context of the proposal to publish details of applicants on the internet. This is an infringement of rights which will lead to employers checking to see whether job applicants or employees have brought claims with no means of redress for the individuals concerned. There should be a record of all claims lodged and statistics kept. Names of individual applicants are unnecessary.
The Government also asks what more can be done to ensure that weak cases are identified and dealt with at an early stage?
Comment: The recently introduced rule changes appear to provide adequate protection and should be given time to operate.