Benjamin Gray considers the core proposals in the Government's recently released response to a consultation on Reforming the Employment Tribunal System, with some of its proposals contained in the Prisons and Courts Bill.
The core proposals are:
The Government proposes to transfer its case management and processing from paper to digital, envisaging a process where ‘users can digitally start a claim, track progress, provide evidence and information, and participate in innovative resolution methods if they wish to do so’. The system would aim for increased use of virtual hearings via telephone, online and videoconferencing. This would be supplemented with ‘Assisted Digital’ support for those who need help using online services.
The Government intends to phase this change in over a number of years, with ET and EAT digitisation occurring in the latter part of the more general drive towards digitisation of the Courts and Tribunals services. This is said to allow the ET and EAT to learn from the implementation of digitisation in other Courts and Tribunals.
The Government also proposes Online Consideration without a physical hearing in appropriate cases. This would not just apply to case management and preliminary hearings (for which 45% of the former already take place via telephone), but also potentially to appropriate Final Hearings. The consultation response recognises that this will not be suitable for complex cases, and acknowledges that such a system ‘Will not be mandatory’. Judging by the thrust of the response, it appears that the Government’s focus is on digitising the Case Management phase of Tribunal litigation.
Following on from the Briggs Report, the Government proposes to delegate some judicial functions to Tribunal caseworkers. The details are vague, and the Government proposes implementation only following ‘further engagement between the Senior President of Tribunals, Employment Tribunal Judges and Tribunal users’. Whatever the outcome of this further engagement may be, the response is clear that any such caseworkers would have to be legally trained or qualified, and take their decisions under judicial supervision.
The relevant provisions can be found in section 50 and Schedules 10-11 of the Bill.
The Government proposes to take decisions about the composition of Tribunal panels away from Ministerial level and instead delegate this to the Senior President of Tribunals. The aim is to give the Tribunal system increased flexibility, and have the decisions about composition resting with the senior judiciary rather than Ministers. There is no proposal to remove non-legal members from Tribunal cases ‘where their workplace experience is needed to help determine the case’.
This proposal is in section 52 of the Bill.
The Government also proposes to move the power to make and amend the ET and EAT’s Rules of Procedure to the Tribunal Procedure Committee, which performs this function for the First Tier and Upper Tribunals. The Committee is to be bolstered with the addition of an Employment Judge and an Employment law practitioner, whom the Government expect to head an employment subgroup within the TPC.
There is no proposal to make any major revision to the Rules, but rather any change would be ‘incremental, iterative and in specific areas’.
There changes are contained in sections 48-49 of the Bill.
In addition to the consultation, sections 37-45 of the Bill enable the creation of Online Procedure Rules. The provisions are broad, but what appears to be envisaged is that various types of proceedings, or parts thereof, would be designated as either mandating or allowing for the use of Online Procedure Rules (with further exclusions and exemptions possible) rather than the ordinary ET Rules of Procedure. These rules would allow for the disposal of cases ‘by electronic means’, extending from the case management stages through to ‘the final determination of proceedings’.
These powers are drafted to apply to a wide range of proceedings, meaning this last possibility should be read in line with the Government’s response at 1 above.
The power to make Online Procedure Rules would be given to an Online Procedure Rule Committee consisting of 2 Judges, a lawyer, a person with experience in and knowledge of lay advice, and an IT specialist. They are to have similar powers to the TPC and will be required to consult before formulating their rules. Schedule 8 of the Bill provides further powers to the Senior President of Tribunals, President of the EAT, and Presidents of the ETs to provide practice directions in support of the Online Procedure Rules.
The power to designate specific types of proceedings as being subject to OPRs has to be done in consultation with the Senior President of Tribunals, and is subject to the Affirmative Resolution Procedure.
These changes are contained in sections 37-45 and Schedules 8-10 of the Bill. They propose a series of consequential amendments to the Employment Tribunals Act 1996.
The changes represent part of a wider shift towards streamlining and digitisation of case management functions in the Courts and Tribunals. It also appears to bring the system closer to the unified First Tier and Upper Tribunals, by bringing decisions about composition and procedure into the hands of the Senior President of Tribunals and the Tribunal Procedure Committee.
Numerous respondents criticised the proposals for online consideration of substantive claims, and delegation of judicial functions, given the party-party nature of Employment Tribunal litigation and the increased case management challenges such cases can pose. The Government appears to acknowledge this concern given the suggestions that online consideration should focus on case management, and the decision to effectively defer any decision on delegated judicial functions. This appears to be a carve-out from the general scheme of online rulemaking proposed in the Prisons and Courts Bill.