A constant feature of each
government’s “to do” list is a review of the tribunal system. Such initiatives
have led, in the recent past, to the Employment Rights (Dispute Resolution) Act
1998, which re-named industrial tribunals as Employment Tribunals, tinkered
with the procedures for hearings and compromise agreements, and gave powers to
introduce the Acas arbitration scheme. The latter – in itself an attempt to by-pass
the normal tribunal system for unfair dismissal cases where both parties agree
to informal arbitration by Acas – is also an attempt to cut the pressure of
work on tribunals.
Tribunal review consultation
This year, again, the Lord
Chancellor’s department has been coordinating a consultation on tribunals to
see how the tribunal system can further be changed in order to make it fairer
and more user-friendly, for individuals as well as employers. The responses can
be seen at www.tribunals-review.org.uk
. Of the almost 300 responses received, the most important responses, so far as
they apply to employment tribunals, include the following:
who responded to the consultation think employment tribunals should become the
forum for litigation instituted by employers, as well as employees. It could be
the sole forum for dealing with all employment disputes.
for example, considerable support for employment tribunals being given powers
to hear all cases involving its contractual jurisdiction, whether or not the
employee remains in employment. This might mean issues relating to garden leave
and even restrictive covenants are dealt with by tribunals.
also think tribunals should have the power to make recommendations to employers
to improve work practices, as well as awarding compensation, after a successful
unfair dismissal claim. This power, available
in discrimination cases, is strikingly absent from its jurisdiction on unfair
to the chagrin of many employers, a number of the respondents advocate higher
limits on unfair dismissal claims.
number of points were made about the overlap in the issues between disability
discrimination cases being brought in the tribunal and personal injury actions
being brought in the County Court. This
is already something of a problem, caused by the recent confirmation in
the Klyne Tugs case that discrimination compensation can include damages for
mental injury caused by discrimination.
small number of respondents also commented that they think tribunals should
have a general power to award costs. This is a subject much mooted in recent
years but strongly resisted by various governments on the basis that it might
make tribunal litigation too risky for many individual applicants. But it is
true that the limited costs powers currently available to the tribunals are not
used consistently or effectively.
many respondents think the tribunals generally are not necessarily perceived as
independent. Concern has recently been expressed that government-appointed
judges are often asked to resolve litigation against government departments.
This leads to the intriguing possibility of different forms of appointment for
tribunal members, or even elections, as in some areas of the US!