All Change in the Employment Tribunals: Removing Red Tape or a Hammer Blow to Workers Rights?

Employment Tribunals are increasingly a fact of life for HR professionals since they were introduced in the early 1970s.

They were originally set up as an “industrial jury” to resolve workplace disputes quickly and informally. My older colleagues refer to the days when tribunals used to hear five or more cases in a single day and tell of a simple, quick and common sense process. However, employment law has moved on apace since then and many tribunal hearings now last several days and the law is becoming ever more complex.

By 2011 business groups like the CBI and the British Chamber of Commerce lobbied the government to reform a tribunal system which they saw as “broken” citing problems including:-

• Too legalistic an approach
• Vexatious and spurious claims
• Long delays for cases to be resolved
• Pressure on employers to settle weak claims in order to save costs

In 2011 the current government consulted over reforms to the tribunal system as part of its Red Tape Challenge. They sought views on how to:

• achieve more early resolution of workplace disputes so that parties can resolve their own problems, in a way that is fair and equitable for both sides, without having to go to an employment tribunal;
• ensure that, where parties do need to come to an employment tribunal, the process is as swift, user-friendly and effective as possible; and
• help businesses and social enterprises feel more confident about hiring people.

Following the consultation the Government reviewed the law and the tribunal system. The Business Secretary Vince Cable referred to the Government’s underlying aims as to address concerns including:

• “the employment tribunal system, which employers have told me time and again is far too costly, and time-consuming, and complex”
• “If you are a very big company you can afford the dedicated and expensive HR personnel to deal with cases that arise. But for small business owners, it means days dealing with it themselves personally – valuable time lost from running and growing their company.”
• “….. workplace disputes are increasingly being settled through tribunals – over 200,000 claims last year. We are in danger of getting away from the principle that they should be the last resort, not the first option. But there is a widespread feeling it is too easy to make unmerited claims – and that the whole system militates against early resolution of disputes through dialogue rather than confrontation.

This review took place against a backdrop of austerity measures when the business climate was poor and we were still striving for a recovery. The perception was that this “red tape” had to be removed as one of the ways to kick-start our economy.

2013 has seen the fruits of that review with the introduction of many of the more significant changes resulting from the Government’s review.

Trade Unions like Unite have responded angrily to the changes referring to them in the following terms:

• “Massive changes to employment tribunals made by the government mean that access to workplace justice could be denied to millions and now comes with a hefty price tag. The changes are designed to stop working people seeking compensation from employers.
• “Unite has always argued that workplace rights should start from day one, but the government has listened to bosses who want to be able to sack workers at will.”
• “This is a cynical hammer blow designed to make it as difficult as possible to lodge a tribunal claim, and a massive attack on people mistreated at work.”

It is too early to tell where the balance lies and whether the concerns outlined at the outset of this article will be addressed by these changes. However, just what has provoked such an angry response? The changes include:

Qualifying Period for Unfair Dismissal Last year the qualifying period was increased so that in most cases an employee needs to have worked for their employer for two years before they can bring a claim for unfair dismissal to an employment tribunal.

Tribunal Fees Since their creation employment tribunals have been free for those using them. Unlike the courts no fees were payable to bring a claim. However, from 29th July 2013 a person wishing to bring an employment tribunal claim will have to pay a fee of either £160 or £250 to bring their claim. The level of fee depends on the type of claim being brought. A further fee of either £230 or £950 is payable for the case to be heard at a tribunal hearing. Those on low incomes can apply for the fee to be waived but many predict that this change will dramatically reduce the number of claims.

Protected conversations Legislation now allows employers to have discussions with employees about terminating their employment without an employee being able to refer to what was said in those discussions in a later tribunal claim. The aim is to provide employers with the freedom to talk more openly about reaching a severance agreement without fear of their conversations being used against them in tribunal

Changes to the Tribunal Rules. Possibly one for the lawyers this one. The tribunal rules of procedure have been given a complete overhaul with the old rules being scrapped and entirely knew set of rules drawn up. Some of the features of the new rules include rules to enable:

• Greater emphasis on using mediation and other alternatives to using the tribunal
• More consistency between different tribunals with guidance being issued as to how to approach certain issues.
• Weeding out weak claims at an early stage with a “sift stage” at the outset with greater scrutiny of claims by employment judges at an earlier stage (including rejection of claims in certain circumstances)
• Increased emphasis on Employment Judges managing cases and hearings in a more streamlined way
• Increased powers to award costs against those who behave unreasonably or make unreasonable claims or arguments

Employment Tribunals can be stressful, time consuming and expensive. Employment law experts from Cozens-Hardy LLP will be focussing on how to survive them in the forthcoming HR Forum which is taking place at Dunston Hall on 13 November 2013, from 2pm. This seminar aims to take the delegates through the tribunal process from beginning to end. The aim is to de-mystify the process, to prepare delegates for what to expect and to provide practical tips on how to survive unscathed. The delegates will also have the opportunity to view and participate in a mock tribunal hearing and to put questions to experienced employment lawyers.