24 February 2017

Following a consultation regarding reform to the Employment Tribunal process, which closed in January, the government has responded to confirm that some cases will be decided online.

Unions warned in the evidence they gave that it would be too risky to try and identify cases that can be adequately resolved remotely. As PCS explained: "Asking litigants to present their cases solely in writing does not allow for that two-way conversation [between claimants and the panel] and increases the likelihood of miscommunication and therefore the possible wider implications of a claim could much more easily be missed." Unison added that as all claims are required to go through early conciliation with ACAS, there will be few cases that reach tribunal where the facts are not contentious. Furthermore, it is very difficult to identify "simple" cases or those with a low chance of success, as many have turned out to be far more complex and much stronger when cross-examined at tribunal. Without a physical hearing, justice may never be reached in these cases.

Despite these warnings, the government said this week that it aims "to digitise the whole claims process so that users can digitally start a claim, track progress, provide evidence and information, and participate in innovative resolution methods … This will mean that in some cases, the tribunal may not need to hold a physical hearing to determine the outcome of a claim." The government response adds that online resolution will not be mandatory.

While this change requires no amendment to legislation, the government also confirmed that it would amend the Employment Tribunals Act 1996 to delegate powers to the Senior President of Tribunals and the Tribunal Procedural Committee. This will include appointing two new members to the Committee: an employment judge and a legal practitioner; and allowing the Senior President of Tribunals to delegate judiciary decisions to caseworkers.

Such delegation, too, was a proposal highly criticised by unions as just more red tape with little benefit for users of the service. "Decisions taken by caseworkers can be appealed," Unison pointed out. "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."