Proposed tribunal reforms: the beginnings of a north-south split?

Hot on the heels of the Scottish Government’s announcement that it intends to abolish Tribunal fees in Scotland, the Law Society of England and Wales has released a discussion paper which proposes a complete overhaul of the tribunal system south of the border.

The proposals could result in a significant divergence in tribunal practices and procedures across the UK.

11th September 2015

Introduction
Hot on the heels of the Scottish Government’s announcement that it intends to abolish Tribunal fees in Scotland, the Law Society of England and Wales has released a discussion paper which proposes a complete overhaul of the tribunal system south of the border. The proposals could result in a significant divergence in tribunal practices and procedures across the UK.

Scotland
The Scottish Government recently announced that it proposes to abolish employment tribunal fees in its paper “A Stronger Scotland: The Government’s Programme for Scotland 2015-2016”.  Its intention is clear: “we will abolish fees for employment tribunals – ensuring that employees have a fair opportunity to have their case heard”.  However, the finer details and timings are yet to be determined.

If/when fees are abolished in Scotland we are likely to see a significant increase in the number of claims being raised. However, whether numbers will return to pre-fee levels is unclear, especially given the introduction of the Acas early conciliation regime.  Interestingly, the abolition of fees in Scotland may encourage jurisdiction shopping by claimants unless the rules on where an employee may competently bring a claim are tightened up at the same time.

The future of employment fees UK wide remains uncertain as Unison continues to challenge their legality through the courts. While the Court of Appeal recently rejected Unison’s arguments, Unison intends to raise a further appeal to the Supreme Court. The UK Government have recently commenced a review of the tribunal fee regime, the outcome of which is eagerly anticipated.

England & Wales
The Law Society of England & Wales has released a discussion paper – Making employment tribunals work for all – which proposes large-scale changes to tribunal jurisdiction, process and procedures.  An over-complication of the tribunal system and the need for efficient access to justice are cited as justification for the proposals.

As the proposals relate to England and Wales only, this – alongside the Scottish announcement on fees – could mark the beginning of a divergence between the two tribunal systems which have until now followed a largely similar path. 

A single forum
Whilst most would be forgiven for thinking the employment tribunal already operates as a single jurisdiction for employment matters, there are still some breach of contract claims which can only be brought in the civil courts – the most common examples are restrictive covenant claims; and contract claims brought during employment (the tribunal can only hear a contract claim if the employment relationship has already ended). The tribunals are also restricted from making breach of contract awards in excess of £25,000 whereas there is no such limit in the civil courts.

The Law Society for England & Wales proposes that all employment-related claims should be heard in a single forum, and have asked for feedback from key stakeholders on whether this should continue to be the employment tribunal or a new employment court.

Four-tier system
The Law Society proposes a new four-tier system, as summarised below.  Claims would go through a ‘filtering’ process to determine which level was the most appropriate, based on the complexity of the legal issues involved and the value of the claim.  Each level would have different procedural requirements.

  • Level 1 - document-based decision making, with no oral evidence being taken.  This would be reserved for the simplest of cases, usually involving unpaid wages.
  • Level 2 - inquisitorial approach, where judges choose the witnesses and ask the questions in order to determine straightforward cases such as failures to consult, where a bit more investigation is required.
  • Level 3 - existing tribunal approach for cases that currently make up the majority of ET claims, such as unfair dismissal and discrimination.
  • Level 4 - employment cases usually heard in the civil court (such as restrictive covenant issues) will be heard in this new forum but under the civil litigation rules.

There is also debate about whether the specialist tribunal (or court) should take responsibility for non-employment discrimination cases, such as those which arise in the provision of goods and services.

Encouraging resolution – a challenge for the public sector in England & Wales?
It is mentioned throughout the discussion paper that alternative dispute resolution mechanisms should be encouraged and promoted throughout the tribunal process.  At the moment, parties in the UK must pay a fee to use the tribunal’s ‘judicial mediation’ scheme.  The Law Society of England & Wales suggests that in addition to making parties aware of what other options are available, removing this fee could encourage better use of these alternatives.  We anticipate judicial mediation fees would be abolished in Scotland at the same time as tribunal fees.

BIS has also encouraged businesses and employees to use alternative resolution mechanisms in order to resolve workplace issues.  In the majority of cases, this will ultimately mean entering into a settlement agreement following negotiation and/or mediation.  However, current government policy in the UK prevents public sector employers from reaching settlements other than through an Acas approved settlement, once a claim has been raised.  The Law Society discussion paper provides food for thought, and it will be interesting to see if government policy in England & Wales may be relaxed in line with the proposals to promote the use of alternative dispute resolution.

Forum shopping?
We have speculated already that we may see employees ‘forum-shopping’ in order to avoid fees if the plans to remove fees in Scotland are implemented.  If these more radical changes to the English and Welsh tribunals are implemented, could we see employees face a choice between saving money, or paying for a quicker resolution?  Or will the Scottish tribunal system opt to undertake a similar overhaul?  The jury (or tribunal) is still out…