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Proposals for reform of Tribunal system

21st December 2016

Governments over recent years have made changes to the Tribunal system. Some have helped to improve the system, others arguably have not helped. A significant feature of reforms to the Tribunal system in recent years has been the introduction of the lodging of claims online. At present roughly 90%of claims are submitted online.

In another consultation process proposals of online decision making and delegated judicial functions have been raised. In September 2016, the Lord Chief Justice, Lord Chancellor, and the Senior Presidents of the Tribunals published a joint statement setting out intentions to make changes to the justice system. The changes included proposals for digitising complete claims processes, and delegating some of the routine tasks to caseworkers (ie away from judges). Any changes to the Employment Tribunal system will have to be implemented via legislation. As a consequence of that, the Government now anticipates that the changes in the Employment Tribunals and the Employment Appeals Tribunal will be among the last to be implemented (the Government has probably more pressing and controversial matters on its hands at present!). It is refreshing to note that the Government wants to apply the proposed reforms into the Employment Tribunal system in such a way as recognises the differences between the Employment Tribunals and the other parts of the Tribunal system in the UK.

On the subject of delegation of powers it should be noted that the role of Tribunal Case Worker already exists in some other Tribunals in the UK system. They have a responsibility for taking procedural decisions (including matters such as the timeliness of applications and applications to amend documents). The view of the Government is that there should be caseworkers in the Employment Tribunals and the EAT that should be able to deal with case management functions too. The Government does note that the delegated powers should not cover the substantive decisions on a person's individual employment rights. So the most important decisions will remain with the Tribunal judges.

Turning to the matter of digital involvement in cases, while some 90% of cases are commenced online, thereafter they are handled in paper form. The consultation proposes that all communications with the parties be conducted digitally. While the consultation paper appears to accept that complex cases, such as those involving discrimination claims, are not suitable for a digital-only approach, other more straightforward cases may be suitable. The consultation seeks views on the possible scope of this in the Employment Tribunal system.

The consultation papers are notably silent on the topic of fees in the Tribunals. Frankly much of the aim of reform has been effectively removed, as the Employment Tribunals have far fewer cases on their hands now than they did before the introduction of the Tribunal fees. In our view the system is not now a legitimate target of allegations of slowness and delay in its operation. So, if the aim of the proposals is imply to speed up a slow process in the Employment Tribunals, then it is attempting to remedy a problem that does not exist. We also have some concerns over accessibility to the system if ALL correspondence with the Employment Tribunal is to be conducted digitally, as not all people have access to and use of computers and e-mail, or would regard themselves as particularly competent with such systems. Even among those that are comfortable using e-mail we still come across those people that check their e-mails no more often than say once a week- which could prove a problem if a Tribunal were to require the individual to take steps in their case in a short time from the Tribunal sending the relevant e-mail.

If you need assistance on any matter raised in this article or on employment law matters in general please do not hesitate to contact us at Hallett Employment Law Services Ltd.        

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