Resolving Workplace Disputes Consultation

Summary of the proposals to reform employment tribunals

The Government has launched a consultation on reforming workplace disputes and streamlining procedures in Employment Tribunals. The full text of the consultation documents and questionnaire can be found on the BIS website here but a summary of some of the key proposals is set out below.

**Mediation & Compromise Agreements **There are no specific proposals on the use of mediation but the Government is seeking to understand the current extent to which mediation is used to resolve a disputes prior to an employment tribunal claim. They are seeking responses on the costs and benefits of using mediation and what barriers might be preventing employers and employees from using it as a way to agree a solution to a dispute.

Early Conciliation As part of moves to encourage early conciliation the Government would like to include more information on the ET1 setting out the likely value of awards, and the average length of time a claim takes to complete the tribunal process. Similar information would be provided to employers "so that, where they believe that the claim against them is unjust, they can take an informed decision about defending the claim. "

More radically they think there is a strong case for all claims to be submitted to Acas before they can be lodged with the ET which would stop 12,000 claims being lodged, according to their estimates. Under this proposal claimants would submit to Acas a shortened ET1 within the relevant time limit at which point the time limit applicable will stop ticking. Acas would then have one calendar month to resolve the dispute. If the pre-claim conciliation (PCC) fails the claimant could submit a full ET1 and the clock starts running again. It is not envisaged that Acas would be given any powers to vet and reject claims at this stage.

Strike Out The Government are seeking to widen employment tribunal powers to strike out claims, citing the example that this cannot be done even at a Case Management Discussion where both parties are present before the judge. So they would like to see the power to strike out a claim made available, at any hearing or without hearing the parties or giving them the opportunity to make representations, regardless of whether a judge is sitting alone and the decision is the court's own initiative.

Respondent employers would also be able to request that an employment judge considers a claim form right at the outset, in light of their proposed new strike out powers. The aim of this proposal is to allow an employer to submit an abbreviated ET3 'response' form to the employment tribunal, and suggest that further information is required to justify the claim.

Deposit Orders Employment judges should have the power to make deposit orders otherwise than at a hearing, or at hearings other than pre-hearing reviews. The Government is also considering changing the test for making such orders and wants to increase the maximum deposit order from £500 per matter to £1000. It is hoped this change "would increase the disincentive effect of the deposit regime, and so help to make it a more robust feature of the 'vetting' system." Similar powers would be available to the EAT.

Costs The consultation document makes it clear that there is no plan to move towards a general costs-recovery policy but there is a proposal to double the current cap on costs awards from £10,000 to £20,000

Formalising offers to settle A rule for formal offers as part of the proceedings is suggested, and these would be backed by a scheme of penalties and rewards, "in order to encourage the making – and acceptance - of reasonable settlement offers."  A tribunal would have powers to increase or decrease the amount of any financial compensation which is ultimately awarded where reasonable offers have been rejected. This change would not mirror Part 36 of the CPR but instead would introduce a procedure in line with judicial tender model in Scottish courts where written details of the offer are lodged with the court office and communicated directly to the other side.

Witness statements A default rule will be introduced that witness statements will be taken as read, subject to the judge's discretion to direct otherwise.

Judges sitting alone The power of judges to sit alone should be extended to unfair dismissal claims.

Legal Officers The Government would like to see judicial time freed up by creating legal officers who would handle general interlocutory work currently administered by the judges.  Such work could include adjourning or postponing hearings, exchanging documents, amending pleadings, the provision of expert evidence or the listing of cases for hearing.

Overriding objective Although admittedly symbolic there is a proposal to add an over riding objective, to mirror the CPR, stressing the importance of "allotting to [each case] an appropriate share of the [tribunal's] resources, while taking into account the need to allot resources to other cases".

Fees The Government would like to see fees introduced in line with other similar parts of the justice system. No firm proposals are put forward other than a further consultation, in the Spring, on how to implement such a system.

Extending the qualification period for unfair dismissal This would be increased to two years for unfair dismissal but would not have any affect on the existing "day one rights". The Government believes this measure would "contribute to our overriding objectives of encouraging growth through giving businesses more confidence when they consider taking on people"

Financial Penalties on Employers A system of financial penalties is proposed "on those employers found to have breached an individual's rights" as a means of enforcing compliance and good practice.  These penalties would be automatic unless there are exceptional circumstances and paid to the Exchequer. The penalty would be half the total value of the award subject to a minimum £100 and a £5,000 cap but where a non-financial award has been made a monetary value would be ascribed so an appropriate financial penalty can be made.

The consultation closes on 20 April 2011.

Published: 30/01/2011 10:26