The Government’s public consultation on proposals to require those who use the tribunal system to pay a fee for bringing a claim closed on 6 March, just one month before the increase in the qualifying period for claiming unfair dismissal from one to two years comes into force on 6 April.
However, there are some important changes to employment tribunal procedure that are also coming into force on 6 April. Here, XpertHR employment law editors Stephen Simpson and Jeya Thiruchelvam outline these changes and consider the pros and cons of each.
1. Employment judges sitting alone
Employment tribunals normally comprise an employment judge and two lay members. However, there are certain proceedings that may be heard by an employment judge sitting alone, including breach of contract and redundancy pay claims. On or after 6 April, employment judges will also hear unfair dismissal cases alone, unless they are directed to do otherwise.
- The cost of hearings will be lower without having to pay fees and expenses associated with lay panel members. Where a case runs across different days, or needs to be considered again later (for example, a remitted case), it will be more convenient and cheaper for a judge to hear it, rather than having to reconvene three panel members.
- When hearings go part-heard the parties will not have to wait until both of the lay members are also available, which means that it will be easier to get further hearing dates and stop hearings dragging on for months.
- Requiring the parties to take one employment judge through the issues of a less complex case generally takes less time at a hearing, given employment judges’ experience and knowledge of employment law. Judges are used to dealing with the “range of reasonable responses” test that is the key issue in most unfair dismissal cases, so they should not have a problem in considering this issue without the assistance of lay members.
- While the majority of the claims in jurisdictions reserved for judges sitting alone can be dealt with effectively in this way, some more complex cases (for example, those involving whistleblowing) are better suited to a complete panel of three members.
- If the default will be for judges to hear unfair dismissal cases alone, it is unclear how often, if ever, judges would actually choose to use lay members. However, seeing as so many unfair claims are accompanied by discrimination claims, this may lead to a situation where claimants never get lay members if they bring a single unfair dismissal claim, but always get lay members if they attach a discrimination claim as well.
- Lay members are arguably of most value when dealing with complex factual issues, which are more likely to arise in unfair dismissal cases.
2. Witness statements taken as read
Traditionally in employment tribunals, witnesses are asked to read the content of their witness statement out loud, so that the tribunal can see and hear the evidence presented orally. Cross examination can then follow. For claims submitted to the employment tribunal on or after 6 April 2012, witness statements will normally be “taken as read”. Unless an employment judge directs otherwise, a witness statement would stand as the evidence-in-chief of the witness concerned and it would no longer be read out in its entirety.
- There is a lack of consistency, often dependent on where the tribunal is located, as to when witness statements are taken as read. Tribunals will benefit from a more consistent approach and, in any event, civil courts do not require written statements to be read out. There is no strong reason why employment tribunals should be any different.
- There will be cost savings and cases may be heard more quickly. It can take the tribunal many hours, and even days, to hear the evidence. This is often a waste of time, as the parties should be familiar with each other’s witness statements anyway.
- It is important, especially in complex cases, that all parties get a fair chance to put their arguments. It is to be hoped that judges take a flexible approach and allow testimony to be read out if, for example, a reminder is needed of its contents in a complicated case with many witnesses.
- The rules should be made clear and some leeway given to litigants-in-person, who may want to feel that they have “had their say” or need to hear the other side’s testimony if they are not used to familiarising themselves with witness statements, or the evidence is technical or confused.
- The process of a witness reading out his or statement may help the tribunal to assess his or her credibility as a witness.
3. Deposit orders
Deposit orders require a party (either the claimant or the respondent) to pay a sum as a condition of being permitted to continue to pursue all, or any part, of the respective claim or response. The judge can require a deposit to be made if any contentions put forward by a party have “little reasonable prospect of success”. Judges can order deposits to be paid only in pre-hearing reviews, with a £500 limit. For claims submitted to the employment tribunal on or after 6 April 2012, employment tribunal judges will be able to order claimants at any stage to pay a deposit of up to £1,000 if they believe that weak claims are being pursued.
- It is generally acknowledged that deposit orders are not made often enough and might put off serial litigants, so any reforms would be welcome.
- There is no obvious reason why employment tribunals should not be able to make deposit orders at any stage of the proceedings.
- Employment tribunals would have to be proactive to make sure that deposit orders are actually used. Something may need to be done to make deposit orders a more frequent choice for employment judges as they are rarely used.
- Once employment tribunal fees are introduced, tribunals may be even more reluctant to use deposit orders, if claimants are already paying to bring a case.
4. Costs orders
There are currently three types of awards: costs awards (for fees, charges, or expenses incurred by or on behalf of a party); preparation time orders (made in favour of a party who has not been legally represented); and wasted costs orders (made against a representative as a result of the representative’s conduct). The maximum sum that tribunals have the power to award under the first two types of order is £10,000. There is no cap for wasted costs orders. For claims submitted to the employment tribunal on or after 6 April 2012, the maximum costs order that can be awarded increases from £10,000 to £20,000.
- It is generally acknowledged that costs awards are not made often enough and would put off serial litigants, so any reforms would be welcome.
- The Government envisages that increasing the costs cap will help to encourage parties pursuing weak claims and responses to “think carefully before initiating tribunal proceedings”.
- The difficulty of recovering costs means that simply raising the threshold may not be enough to discourage weak claims and responses.
- Anecdotal evidence suggests that, where the claimant is unrepresented, respondents or their representatives use the threat of cost sanctions as a means of putting undue pressure on their opponents to withdraw from the tribunal process. An increase in the possible costs award might exacerbate that problem.
5. Witnesses’ expenses
For claims submitted to the employment tribunal on or after 6 April 2012, the option for parties, their witnesses and any voluntary representatives to apply to an employment tribunal to recover some of the travelling costs and other expenses associated with attending a tribunal hearing to give evidence is removed. However, employment tribunals are able to direct that the parties bear the costs of a witness attending a tribunal hearing where his or her attendance is pursuant to a witness order, and that the losing party reimburses the winning party for any such costs that have already been paid out.
- In the civil courts, there is no equivalent facility for expenses to be reimbursed out of the public purse. It is considered the civic duty of relevant witnesses to give evidence in legal proceedings. Wherever a witness summons is issued, expenses can be sought. There is no strong reason why employment tribunals should be any different.
- The fact that there is a cost associated with calling witnesses may encourage greater discipline from claimants when doing so, leading to a reduction in the number of witnesses called and consequently shorter hearings.
- In reality, individuals bringing employment tribunal claims are often recently out of a job, meaning that there can be considerable financial strain on them if they have to find their own witnesses’ expenses, especially if the claimant was low-paid and needs to call a number of witnesses.
- It is not uncommon for witnesses to still be employed in the workplace where the events at the heart of the claim are alleged to have taken place and tribunal witnesses are notoriously reluctant to come forward for fear of upsetting their employer. The removal of expenses is yet another disincentive.