23 January 2017

On 05 December last year, the government released a consultation on proposed reforms to employment tribunals that it claimed would make the system more "just", "proportionate" and "accessible". But unions have highlighted that the proposed reforms will do little to help access to justice, and simply add further red tape to an already over-complicated system.

The policies proposed by the government include digitalising the system for making claims; the possibilty of resolving some claims digitally rather than at a tribunal; allowing caseworkers to make some judiciary decisions; and limiting the requirement for non-legal members on panels. The consultation ended on Saturday (21 January 2017).

Tribunal fees – the elephant in the room

Responding to the consultation, both the Public and Commercial Services Union (PCS) and public sector union UNISON highlighted the elephant in the room within the programme of reform: tribunal fees. Despite the government promising to release a report on the impact tribunal fees have had on access to justice over a year ago, no such report has materialised, earning the Justice Department scathing criticism from a Select Committee reviewing the matter, which accused it of burying evidence of its own failure.

Indeed, all indications are that the tribunal fees have been a major barrier to access to justice in the UK, with the number of claims falling by over 70% in some areas, such as unfair dismissal. The government initially argued that the fees would dissuade people from making unmeritorious claims, but figures cited by UNISON in its consultation response show that success rates have fallen from 18% in 2011/12 to 4% in 2014/15, which in fact implies that the fees have led to an increase in unmeritorious claims.

UNISON also pointed out that it was suggested the employment tribunal fees would help fund the employment tribunal system but if this was truly the motivation for the policy, then it has been a disaster in practice. The annual cost of the Tribunal system in 2015-16 was £65.8 million, but the net income from fees was only £8.6 million.

Both unions highlighted that nothing in the proposed reforms could improve access to justice while the fees are still in place.

Legal aid cuts

PCS also highlighted that the consultation document proposes claimants may be able to receive face-to-face support from charities, but following legal aid cuts this may simply not be possible.

"The removal of civil legal aid has also led to major inequality in the employment tribunal system," the union explained. "Major employers … will come with legal representation to every hearing while claimants will frequently appear as litigants in person. The government needs to look at how to make representation more even-handed, perhaps by not permitting employers to engage legal professionals unless they can mount a reasonable argument as to why they should, for example on the complexity of the issues."

Digitilisation

The digitiliation of the claims process and potentially even the ability resolve claims online were some of the widest ranging proposals in the consultation. Both PCS and UNISON were concerned that the technology to provide this service may not be up to scratch – with PCS, some of the members of which work in the tribunal system, pointing out that the service has experienced a history of poorly integrated technology.

Additionally, there was fear that not every claimant will have access to a computer and the internet, particularly if they are making a claim because they have lost their job (and with the closure of libraries, not all claimants have access to a public computer). "There is often a clear imbalance of power between claimants and respondents, with respondents having the greater resources," UNISON pointed out, highlighting that the use of technology could widen this divide further.

The consultation document stated that hard copies would continue to be accepted as well as online applications, but PCS also queried whether digital claims would be prioritised over hard copies, pointing out: "This is particularly concerning if we take into account the fact that many of those without access to computers or the internet or do not have the skills to use this technology, are often the people who most need the service we provide."

PCS concluded: "We are concerned that the proposals as they stand are overly reliant on delivering services through unproven and untested technology and that local, face-to-face access to justice is being cutback to deliver budget cuts. The consequence of which means that access to justice will be unavailable to those that need it most."

Resolving claims online

While some digitilisation to improve the efficiency of processes was welcomed by the unions, both believed resolving claims online was a poor proposal. UNISON pointed out that employment tribunal claims are required to go through mandatory early conciliation with ACAS, so there is no question over whether the parties are in dispute by the time it reaches tribunal, and there will be few cases where the facts of the case are not contentious. For this reason, there will very rarely be a case simplistic enough that it could be resolved online and a trained judge and panel need to be provided to sift through the evidence and come to a decision in order that a discussion can be had between the adjudicators, claimants and respondents.

PCS further explained: "Asking litigants to present their cases solely in writing does not allow for that two-way conversation and increases the likelihood of micommunication and therefore the possible wider implications of a claim could much more easily be missed."

Furthermore, UNISON pointed out that it is not always clear how complex a case will turn out to be prior to the tribunal, and historically cases that have appeared to have a low chance of success have actually been found to be strong cases after they have been cross-examined at a tribunal.

Caseworkers making judicial decisions – just more red tape

Another criticism of the proposals by both unions was that the new proposals could simply add more bureaucracy when the law around employment tribunals is already too complex. UNISON argues: "Employment tribunal judges are underutilised and there would therefore be no need to delegate judicial funtions to caseworkers … the consultation identifies that decisions taken by caseworkers can be appealed. This is clearly a waste of time and requires additional resources, and an extra layer of administration … The current system could be more efficient, if Employment Judges were allocated to a case, and were allowed to make decisions in a timelier manner."

PCS added that legislation around labour law as a whole is unecessarily complex, suggesting: "What is needed is a straightforward Codification of employment rights which is kept up to date."

Limiting non-legal members on tribunal panels

On the proposal to limit the inclusion of non-legal members on tribunal panels, both unions highlighted that these professionals serve an important function by providing information and knowledge about the industry in question. UNISON added that reducing the use of lay members will lead to a de-skilling of these non-legal professionals, which could make their presence less effective in future tribunals.

How will tribunal staff be affected?

PCS was also interested in what implications there may be for its members working within the tribunal service, which was not covered by the consultation, including for instance whether the reform will mean further cuts to the public service. The union highlighted that it is already known the service's staff will be reduced by at least a third, querying whether the new reform would include closing or relocating offices; making redundancies; or having staff work out of call centres.

As well as potentially dire implications for public servants, such moves could also affect access to justice. PCS pointed out: "Reductions in staff numbers over the past few years has been to the detriment of customer service and we are concerned that the key driver of ET reform is 'to reduce the costs of the tribunal system to tax payers' and not to improve customer service given the staff cuts projected for [the service] as a whole".

As a user of the service, UNISON also commented on how staff shortages have been to the system's detriment. "Administrative decisions within the tribunals are still subject to delays due to a lack of staff."

Trade unionism could improve access to justice

Lastly, UNISON pointed out: "Disputes in the work place tend to be resolved informally where there is a union presence", thus providing access to justice in a cost-effective, timely manner without the need to rely on the tribunal service.

Indeed, the Institute of Employment Rights in its Manifesto for Labour Law recommends that a reform of employment law is undertaken to strengthen the role of trade unions in the workplace, including in relation to disputes.

Our proposals, which have been adopted by the Labour Party, include shifting the focus of employment law to collectively agreed wages and conditions rather than relying on individual statutory rights. This would include trade unions agreeing dispute procedures with employers ahead of time so that when disputes arise the matter can be resolved internally. We also propose that a labour inspectorate is established, with inspectors able to enter workplaces to ensure that collective agreements are adhered to and that the law is followed. They would also have the power to issue enforcement and cease and desist notices when provided with evidence of clear wrongdoing. Where disputes are more complex, the labour inspector would have the power to refer the case to an employment tribunal on behalf of the claimant, and all tribunal fees would be dropped.

Click here to read more about our Manifesto for Labour Law

Also, don't miss your chance to discuss this reform and the many other issues facing access to justice at our forthcoming employment conferences. You can still book a place at our Liverpool Access to Justice conference, which will be held tomorrow (24 January 2017); and at our London Access to Justice conference on 08 February.