A more enlightened strategy from the Government is required if we are to have an efficient, transparent and modern employment tribunal system, argues Makbool Javaid
While some of the employment legislation during the past five years can be attributed to the UK’s belated acceptance of the Social Chapter of the Maastricht Treaty, a significant proportion has its origins in Westminster and the Government’s acceptance of trade unions’ demands for a better balance of power between business and workers. The aim was to establish a regulatory framework offering an increase in employment protection to workers.
Faced with such an onslaught, the CBI has consistently argued that the UK is fast becoming over-regulated and an unattractive market for inward investment.
It is against this background that the Government’s latest consultation paper on the reform of the employment tribunals should be viewed. The main thrust of the proposals focus not on the tribunal, but on encouraging the establishment of dispute resolution procedures in companies so as to increase the prospects of resolving workplace disputes. The Government now suggests that tribunal awards could be reduced if workers fail to take advantage of internal procedures and likewise increased if procedures are not made available by the employer.
The recently introduced rules give tribunals greater powers to award costs and strike out misconceived cases. The Government suggests there should be a presumption in favour of awarding costs in “weak” cases and that tribunals should be obliged to provide reasons when costs are not awarded. By far the most controversial suggestion is that a fee (£60-£200 has been mooted) be paid to issue a tribunal application by workers with exemptions for those on benefit.
As the jurisdiction of tribunals increases and the litigious culture among workers takes hold, the Government had to act. Unfortunately there appears to be no clear strategy other than the recent spurt of fine-tuning tribunal procedures.
There is nothing in the Government’s consultation document to give hope that the new procedural rules will be applied robustly by the tribunals. The reality is that the powers will be meaningless unless they are consistently and regularly invoked by the tribunals that are prepared to adopt a more hands on approach. At the moment such individuals who may be acting out of a sense of injustice will face costs penalties. The reality for employers is that cost awards are not usually worth the paper they are written on.Too many cases are brought by litigants with no expert advice on the claims, resulting in a system clogged with misconceived claims.
It would be far better for employers if such individuals had access to sound legal advice. In theory, the Government’s proposals could stem the rising numbers of employment tribunal applications. In reality, the superficial change must now give way to radical reform. The most positive proposal involves giving the president of the Employment Tribunals the power to issue practice directions to ensure greater consistency among tribunals. As has happened with the civil courts, practice directions may provide the mechanism to bring about change in the short term. If the president can direct tribunals to be more consistent, we may begin to detect a reduction in the numbers of weak claims and hopeless defences that currently litter the tribunal system, only to be unearthed on the day of the full hearing.
Unless the president is prepared to be brave and change the culture of tribunals to a more proactive stance, one alternative is to give workers access to legal advice to reduce the burden on businesses. Ironically, the interests of employers are better served by a better informed worker than the one chasing windfall settlements and advised by no-win no-fee advisers.
It may be time to bite the bullet and make legal aid available in employment tribunals in England and Wales, as already exists in Scotland in relation to difficult cases. The future of an efficient, transparent and modern employment tribunal system depends on a more enlightened strategy from the Government. At present the likelihood of a change of heart looks slim unless the message is hammered home from all sides.
Makbool Javaid is a partner in the employment practice at DLA and a member of the Law Society Employment Committee.
