ET or not ET? That is the ­question

first_imgWhen an employment lawyer dies it must be tempting for those left behind to draw upon the career of the deceased when considering an inscription for the tombstone. Some may aspire to the simple phrase: ‘He lived as he died; scandalous, vexatious and with no reasonable prospect of success.’ For my part, I would wish any obituary to describe me not as having died but instead as having been ‘struck out’. But what will be the obituary of the employment tribunal system when it one day draws to a close (as we all must)? Alright, there is no proposal to actually disband the institution, but how radically can it really be changed before it is regarded as being a ­completely different entity? With the proposal to charge claimants a fee to issue/proceed with a claim, should we not be asking how much of the original ‘industrial tribunal’s’ DNA will then remain? On the face of it the change may not seem so radical. Tribunals already have the ability to make deposit orders (and I have even heard tell of striking out claims – though I suspect such stories to be apocryphal). At dinner parties around the land employment lawyers have probably suggested far more dramatic solutions to the problem of controlling the costs of spurious claims – my own favourites being the resolution of disputes by recourse to a game of Twister or even the ducking stool (if he does not die it is unfair dismissal) – though this may be relaxing the laws of evidence too far (and may make appeals even more unlikely to survive sifting). The concept of fees is not a change to the substantive ‘law’ itself, or even the rules of procedure for the actual conduct of claims. Many agree that something must be done to discourage foolish claims, so why the fuss? The problem is that however low the proposed fees (see below), we must acknowledge that the change represents a quantum leap in the very basis upon which claimants (usually unemployed ones) may now have access to the system – one that was designed to give access to quick and simple justice to the ordinary person. The system has never been without its problems. As far back as June 1978 the minister for employment (then Harold Walker), faced with criticism about the increase in claims and cost for the ‘industrial’ tribunals, told parliament that ‘[they] may not be perfect, but the tribunals were set up to provide a speedy, informal and inexpensive means of settling disputes. I am anxious, however, to stop them becoming more like law courts’. His proposed solution was quite different from that at hand. Far from suggesting charging fees to ‘applicants’, he noted ‘an increasing tendency for employers to engage lawyers to represent them. Not only does that put up the cost to the employer, it increases the legalism and often prolongs cases. I do not go along with those who want more lawyers in tribunals’. It is notable that he refers only to employers engaging lawyers. The phenomenon of employee reps had perhaps yet to hit the streets. Admittedly, the decision to introduce fees has not been made rashly, and for many years there has been genuine concern at society developing a taste for litigation and the perceived increase in people ‘trying it on’. These days there cannot be a pub in Britain in which a lay ‘expert’ on tribunal claims cannot be found. Like the M25, it is possible that the tribunal system has even become a victim of its own success. The cost to respondents (and more significantly the state) in dealing with those claims has soared and a barrier might well be required to stand between justice and claims that are not genuine or serious. But is the introduction of fees really consistent with the system? Also, would it not be nice if the ­tribunal made better use of the rules we already have? The odd striking-out order would be encouraging. There is of course debate about how fees will be imposed. The government issued its consultation on the level of fees and has come up with two different options (on which it has sought views). Under option one, fees would be charged at two stages: first on issue and then, for those claims proceeding to a hearing, before the hearing. Fee levels would depend on the type of claim, and where more than one claim is made on the ET1 form, the fee payable would be the one which relates to the highest level. Claims lodged without the correct fee would not be accepted. The indicative level of fees and the person initially responsible for paying (the claimant) would be in the region of £150-£250 as an issue fee and £250-£1,250 as a hearing fee. Option 2 is that fees would only be charged on issue. The level of fee would depend both on the type of claim made and on the level of compensation sought – all claimants would have to state whether they are seeking an award in excess of £30,000 and, if seeking an award below £30,000, the tribunal would be precluded from awarding more. The indicative level of fees and the person initially responsible for paying (again, the claimant) would be between £200 and £600 (for claims of varying complexity of up to just under £30k) and £1,750 (for claims of £30k and over). Under both options tribunals would have the power to order the unsuccessful party to reimburse fees paid by the successful party, and admittedly the HM Courts & Tribunals Service remission system would be available for those who cannot afford the fee. There would however be no refunds. The government has said that if option one is decided upon, the fees would be introduced in 2013, but if option two were adopted the changes would not be made until 2014. The consultation closed on 6 March. No doubt there will be rejoicing in some quarters that something is being done to make claimants think twice before investing in proceedings, but given that the very foundation of the system was to afford ‘free’ and accessible justice to workers, are we creating a completely different ­system in doing so? Rather than the tribunal system of the 1970s, are we on the verge of creating ‘county court-lite’? There is of course another possibility. Just as the human body is completely ‘renewed’ and therefore different every 15 years (with all the younger cells being replaced by new, slightly ‘older’ versions), perhaps the tribunal system must shed its skin every so often. It is hard now to imagine that in 1986 the maximum compensatory award was £8,000 (as context, the maximum amount of compensation that could be paid tax-free was still £30,000). It is harder still to contemplate that the qualifying period for unfair dismissal, having been six months, two years (one year for small employers), two years for all employers and then one year, could now be moving back to two years (though with a present indication this would apply only for employees whose commencement date was on or after 6 April 2012). Some might say that the tribunal system must adapt to meet the times in which we live, whether or not such flexibility may take us away from the raison d’être of the system. For my part, I shall brush up optimistically on my Twister in case things ever move in that direction and look for happier times to come. In the interim, perhaps that announcement will simply have to read: ‘The employment tribunal is dead. Long live the employment tribunals.’ Darren Clayton, Doyle Clayton Solicitorslast_img