The Future of Employment Tribunals: a need for change?

Dodge the tumbleweed blowing down the corridors, enter any Employment Tribunal (ET) waiting room and you will almost certainly see at least one employment lawyer sitting, staring at the dregs in their polystyrene cup looking to see whether the tealeaves will reveal if and when ET litigation will rise again, or whether the end of the ET system is nigh.

We all know that the introduction of fees in July 2013 resulted in a dramatic nationwide fall in the number of ET claims and that the number of claims plunged further after the introduction of mandatory Acas early conciliation the following spring. Depressingly, it is equally well-known that the reduction in the number of claims making it through to issue is not translating into significantly improved performance, for example in terms of faster processing of claims. This is perhaps hardly surprising, given that the ET service has proved no more immune from funding cuts than other areas of the judicial system. While there may be fewer claims getting off the ground, there are fewer people and facilities to progress those that do. Headcounts of ET administrative staff and employment judges have declined and a number of ET venues have either relocated or consolidated with other branches of the judicial system. Indeed, a trip to the Southampton ET is distinctly less relaxing now that it is located in the West Hampshire Magistrates’ Court and one has to hang about waiting for a hearing to be called alongside the curiously eclectic mix of magistrates’ court users.

Increasingly there are calls for a wholesale review of the ET system – a system that has remained largely unchanged since its inception in the early 1960s.

Where lies the future?

On 12 January 2016 Lord Justice Briggs published his Interim Report on civil court structure. The report was commissioned by the Lord Chief Justice and the Master of the Rolls in July 2015 and the Final Report is expected to be completed and published this summer.

Part of the problem identified by Briggs LJ is that the ET and the Employment Appeal Tribunal (EAT) are neither one thing nor the other. They are neither part of the civil court structure nor the main tribunal structure. The Interim Report identifies three possible options for the future of the ET and EAT:

• To leave the ET and the EAT where they are, uncomfortably stranded between the civil court structure and the main tribunal structure.

• To bring the ET and the EAT broadly within the civil court structure.

• To make the ET and the EAT part of the tribunal structure, as First Tier and Upper Tribunals respectively.

Surely the first option – leaving them where they are – has to be the least attractive. There are many situations to which the old adage “if it aint broke don’t fix it” may be applied, but this cannot be one of them. The system clearly requires a considerable degree of fixing if it is ever again to do what it was established to do, namely provide an accessible and efficient means for the enforcement of employment rights. Leaving the ET and the EAT where they are means that they will remain unsupported by the resources of either the civil courts or the tribunal structure.

The better option, and the one that appears to be the current preference of the President of the Employment Tribunals in England and Wales and the President of the Employment Appeal Tribunal, is to bring both tribunals within the civil court structure. There are a number of reasons why this would make sense:

• Both the ET and the EAT deal with disputes between private parties, rather than (like most of the tribunal structure) with issues between private parties and government.

• There is a very large overlap between the rights and issues litigated in the ET and EAT and the civil courts. Unsatisfactory jurisdictional limits frequently mean that the whole of a particular single dispute between the same parties cannot be litigated in either forum. So, for example, a wrongfully and unfairly dismissed high-earning executive effectively has no option other than to commence a claim for unfair dismissal in the ET (a claim over which the ET has exclusive jurisdiction) and a separate claim for wrongful dismissal in the civil courts, unless damages for the breach of contract fall within the ET’s jurisdictional common law damages cap of £25,000 (which has not increased since it was introduced in 1994, notwithstanding inflation).

• While there may well have been good reason in the 1960s for claims to be determined by a tribunal with a majority of lay members, the strength of that reason has arguably diminished over time, particularly with the growth of detailed jurisprudence. Further, employment judges are (mostly) now more diverse in terms of background and experience than in the past. In any event, there is no reason why lay assessors could not be used in appropriate cases to support judges and provide a balance of both professional legal experience and industry experience, much as a lay assessor is currently used within the civil courts in cases of discrimination in the provision of goods and services.

• Moving both the ET and EAT within the civil court structure could provide added flexibility for the allocation of the occasional large cases to judges with the requisite experience and authority.

While the Civil Procedure Rules are far from user-friendly to the non-lawyer (or, indeed, to a great many lawyers), that is surely a poor reason to resist a move of the ET and the EAT to within the civil court structure. There seems to be no reason why the ET and the EAT could not be merged into a single specialist Employment and Equalities Court within the structure of the civil court. This court would operate its own bespoke set of procedural rules and would be capable of handling all forms of dispute related to employment and discrimination.

Whatever the outcome of the Final Report, one thing is certain: tea dispensed from ET vending machines will still taste rank.