should a tribunal allow adjournments because a claimant is unwell?

Posted on January 26, 2012 by Martin Malone

Although not dealing with any new principles of law, the decision of the Employment Appeal Tribunal in the case of O’Cathail v Transport for London provides useful guidance about how tribunals should approach requests for adjournments from claimants on the ground of ill health.

It is well known to those who appear regularly at tribunal hearings (and other court hearings for that matter) that witnesses, including claimants, can find giving evidence and being subjected to cross examination a daunting ordeal. There is therefore often suspicion that those who say they are too unwell to attend the hearing are sometimes simply trying to avoid the hearing. Of course, as in all other walks of life, genuine illnesses can affect everyone and it’s often easy to identify that the person concerned clearly cannot attend the hearing.

However, particularly in tribunals where costs are generally not recoverable, the costs incurred as the result of an adjournment can be considerable (possibly including substantial barristers’, solicitors’ and expert witnesses’ costs) and a cynic might take the view that a late adjournment might even promote an offer in settlement of a claim in order to avoid further costs resulting from the adjournment. Continue reading →

TUC rails against "chequebook justice" in tribunals

Posted on January 26, 2012 by Martin Malone

In a widely reported speech made on 20 January, TUC general secretary Brendan Barber has launched a vigorous attack on what he has called "chequebook justice" as a result of the government’s plans to introduce fees for employment tribunal proceedings.

Under the proposals claimants will have to pay an initial fee on commencement of proceedings of between £150 and £250. There will be an additional fee of £250 to £1250 if the matter goes to a hearing with a potential award of over £30,000, or £200 to £600 if compensation is limited to a maximum £30,000. Fees for discrimination claims will be as much as £1750. Many have commented that expecting people who have just lost their jobs to pay fees in order to pursue claims of unfair dismissal or discrimination is rather perverse. On the other hand, according to Department of Justice minister Jonathan Djanogly, the latest figures show that the employment tribunals service costs the taxpayer £84 million per annum. Continue reading →

tribunal reform: fees and more

Posted on December 8, 2011 by Martin Malone

The government plans a “root and branch” reform of tribunal procedures to speed the process up and cut costs, including developing a rapid resolution system for simpler claims which may be decided on paper with no hearing at all. One problem will be to identify which claims are simple enough to be dealt with in this way. It is suggested that disputes about holiday pay would be suitable – but as recent case developments on the accrual of holiday pay for those on long-term sickness absence show – complex issues can arise in apparently minor areas. This will be another long term project; in the meantime, the government will be pressing on with some measures it considers will improve matters and don’t need to await a full overhaul of the rules.

The first of these forthcoming changes, and one which has generated a lot of publicity, is the plan to require claimants to pay a fee to start tribunal proceedings, which they will get back only if they are successful in their claim. Continue reading →

alternative dispute resolution to be promoted

Posted on December 8, 2011 by Martin Malone

As part of the government’s review of employment law strategies to reduce the number of claims which get as far as a tribunal are less controversial, and, some might say, less pro-employer.

ACAS’ current power to conciliate will revert to a duty, and all cases will be referred to voluntary early conciliation before employment tribunal proceedings are started, with an extension of a month to the time limit for bringing claims to allow for this. ACAS has a reasonable track record of success in such early conciliation, but the crunch will be whether they have the resources to cope with the level of work. The need to increase resources is recognised, with the government saying that the additional funding needed will be paid for from the savings made elsewhere. It has to be observed that referral to ACAS in past similar arrangements which operated until 2009 frequently amounted to little more than a few phone calls. Accordingly not too much should be expected from this initiative. Continue reading →

stay of tribunal proceedings, precedence of the High Court and beware the term "draconian"

Posted on November 22, 2011 by Martin Malone

A litigant can sometimes find it difficult to elect the forum in which to issue proceedings. Sometimes it can simply be an issue of cost. Litigating in tribunal is less expensive and the findings of fact will bind a higher court. When deciding whether a stay of tribunal proceedings should be granted where claims are issued on similar facts in more than one court, it is necessary to consider the balance between duplication of court proceedings and the prejudice which might be caused by a stay. In Chorion plc and others v Lane the High Court held that tribunal proceedings should be stayed where there was a sufficient overlap between the tribunal and court proceedings. However, it should be remembered that there is no absolute rule that provides that tribunal proceedings should automatically be stayed.

The litigant, Mr Halstead, in Paymentshield Group Holdings Ltd v Halstead had first issued proceedings in an employment tribunal for unfair dismissal and breach of the Working Time Regulations 1998 in respect of holiday pay. Some two months prior to the hearing, Mr Halstead decided to send a letter before action with attached draft particulars of claim to Paymentshield. When Paymentshield sought a stay of the tribunal proceedings, Mr Halstead at first agreed but then changed his mind, intending to fund the more costly High Court proceedings with the compensation he expected to win from his tribunal claims. He applied for reinstatement of the tribunal proceedings and two employment judges at first instance agreed with him, agreeing to lift the stay because no High Court proceedings had been issued. Continue reading →

the Beecroft report and "protected conversations"

Posted on October 26, 2011 by Martin Malone

A remarkable kite-flying exercise emerged today with widespread news coverage of the report about employment law produced by venture capitalist Adrian Beecroft at the request of David Cameron. With headlines such as “Scrap unfair dismissal claims for lazy workers – report” (BBC) and “Give firms freedom to sack unproductive workers, leaked Downing Street report advises” (Telegraph), the report suggests employers could dismiss employees without giving a reason, by using a “Compulsory No Fault Dismissal System”. According to the report, “the employee should be given a chance to argue his or her case, and to suggest (but not demand) that they be given time to improve or be transferred to a less demanding job at a lower wage. If no agreement could be reached, the employee would receive the same payment they would get if they had been made redundant”. So employers would become unaccountable (save for the equivalent of a redundancy payment) even if the action taken was blatantly unfair and unjustified. Incidentally, if that option is available, why would any employers follow the requirements for a full redundancy process if they can be safely circumvented? The report refers to Britain’s “terrible” employment laws and suggests that they are undermining economic growth. The report is fundamentally wrong on two counts. Continue reading →

employment tribunal claims: do the latest changes really take account of the “human factor”?

Posted on October 26, 2011 by Martin Malone

You know that moment when someone voices something you’ve been thinking for a while? Lord Justice Mummery hit the nail on the head for many who have experience of the employment tribunal system in Gayle v Sandwell and West Birmingham Hospitals NHS Trust when he responded to criticisms about how long the case had taken to progress through the system and how much money had been spent on it.

On the face of it, the criticism was a fair one – the claimant unsuccessfully appealed twice after being unsuccessful in her claim that she was unfairly dismissed for taking unauthorised time off for union duties at a three week hearing, with the final decision being made nearly five years after the events in question. But as Lord Justice Mummery made clear, this case was very much the exception to the rule; few tribunal cases last longer than a day or two; still fewer go to one level of appeal, let alone two, and he pointed out that there are a range of reasons why cases such as this one take a long time to resolve. In particular, he remarked that it is difficult to achieve a speedy, inexpensive outcome where one or more party to the proceedings is determined to take every point of law, evidence and procedure. Continue reading →

consultation on tribunal reform

Posted on June 23, 2011 by Martin Malone

In February we reported that at the end of January the Government published a consultation paper designed to "improve the way in which workplace disputes are resolved" (the consultation period ended on 20 April).

Proposals for a more active role for ACAS in trying to settle claims before they get to a tribunal have been generally welcomed but other proposals have been criticised by experts in the field, not least one to the effect that employment judges should be able to sit alone in unfair dismissal cases. Hopefully the government will listen to the views of the experts this time around. They failed to do so in 2004, when the last serious attempt to improve dispute resolution processes was made. The embarrassing result was that the compulsory procedures then introduced were removed in their entirety just five years later.

It may be helpful, given other current consultations and proposals, to point out that the January 2011 consultation was concerned simply with dispute resolution. It had little to do with the substance of employment law. The separate May 2011 consultation on “Modern Workplaces” (noted in our other posts this month) deals with that.

In addition to these consultations the government made a quite heavy duty employment law announcement on 11 May. This was picked up by various newspapers which provided headlines such as "Coalition to water down employees’ rights"” (The Guardian) and "Sackings to be made easier and payouts cut in war on red tape" (Daily Telegraph). The Unite Union came out with a snappily titled press release saying "Plans to make a bonfire of employment protection policies need to be extinguished".

For avoidance of confusion, it is worth pointing out that this announcement had little or nothing to do with the January and May formal consultations. Also, it turned out to be something of a damp squib. The "action" part of it merely promises a review of three parts of employment law later this year – the parts in question being (i) the absence of a cap on the amount which employment tribunals can award in discrimination cases; (ii) the 90 day consultation period where collective redundancies are proposed; and (iii) TUPE. The first of these took a knock just this week when a proposal to cap discrimination payments at £50,000 was lost due to lack of Parliamentary time

Given that much of the relevant British law is required by EU Directives it seems unlikely that any radical changes will be made. However it may be that official protestations last autumn to the effect that there were then no proposals to change the TUPE regulations are being modified in the light of the Government’s subsequent commitment not to "gold-plate" EU Directives. One area of "gold-plating" is the service provision part of TUPE. While TUPE itself is designed to implement an EU Directive, this part (reg 3(1)(b)) is not. It has, for example, the effect of making it practically impossible for a local education authority to save money by outsourcing provision of school meals to a catering company which offers staff less generous pensions than the LEA.

The road to hell is, of course, paved with good intentions. While employment law may itself be confusing, plans to simplify it can all too easily make things even more confusing. An important message for both employers and employees to take from all this is that while the detail of how the rules apply may be complicated in some cases, it is still true that as a a general rule common sense and fairness will usually win the day in employment law matters.

CBI attacks Employment Tribunals and sets out compelling case for reform

Posted on April 18, 2011 by Martin Malone

The Government is currently carrying out a consultation on workplace dispute reforms and on Friday 15 April the CBI added its substantial contribution to the debate in the form of its report: “Settling the matter: Building a more effective and efficient tribunal system“.

The report criticises the current “slow, legalistic and antagonistic” process so derided in particular by owners of SMEs who regard it as stacked against them from the outset.

The CBI’s key proposals are:

take action to weed out weak claims and create the capacity to hear valid claims more quickly;
encourage early agreement on a fair settlement; and
improve efficiency when cases do go to a tribunal.

Katja Hall, CBI Chief Policy Director, said:

It’s always regrettable when the relationship between employer and employee breaks down to the point where a tribunal claim is made. But when this happens, both sides deserve a system that is consistent, quick and keeps legal costs to a minimum. Instead, we are saddled with a tribunal system that is expensive, stressful and time-consuming for all parties.

“Surely it’s in everyone’s interests for cases with merit to be heard quickly and settled, while weak claims are swiftly identified and weeded out. We’d like to see more workplace disputes being resolved before they reach tribunal.”

The submission is well-written and researched and it sets out a compelling case for reform of the employment tribunal system. The case studies make for particuarly interesting reading and demonstrate clearly that the current system is broken and dire need of a thorough overhaul.

Tribunal claims cost £8,500 each to defend

Posted on January 24, 2011 by Martin Malone

The British Chambers of Commerce (BCC) has undertaken research which shows that the average cost for an employer to defend itself at an employment tribunal is £8,500 whereas the average cost to settle is £5,400, making settlement the cheaper option. Last year there were more claims made than ever (236,100) and the current recession is unlikely to lead to anything other than a further increase this year.

The extent of disruption for employers who have to deal with an employment tribunal claim cannot be overstated. While most employers feel that they are able to answer the claims made the majority (51%) settle claims nonetheless in order to keep costs down and because it is convenient to do so (25%). While costs can be awarded against claimants who bring obviously unmeritorious claims, the number of these orders made is miniscule in comparison with the number of claims made and has decreased every year since 2004/05.

Dr Adam Minshall, Director of Policy and External Affairs at the BCC commented:

“The employment tribunal system is in dire need of reform. Currently, tribunals are too slow and overwhelmingly weighted in favour of the employee – whereas they should be fair for employers and employees alike.

“Small- and medium-sized employers across the UK tell us the current tribunal system creates risk and uncertainty. Ultimately, it’s a barrier to job creation because it distracts businesses from focusing on growth.

“The current system is perverse – forcing businesses to settle spurious claims rather than fight them, simply because it is more cost effective for them to do so. And those costs go beyond legal fees. The reputational impact of a tribunal can be hugely damaging to a business, particularly as they can be stretched over several months.

“We urge the Government to review the current system and consider introducing a fee for claimants to discourage spurious and baseless claims. Ministers must also commit to reducing the wait time for a first hearing – and making the system less of a barrier to business growth.”

Our experience shows that his assessment of delay and bias is correct. It is very hard for employers to avoid some technical defect or another which leaves them open to successful claims by claimants even though they have what they believe to be a thoroughly fair approach to employment relations. Many employment lawyers don’t grasp the nuances of how to deal with what has become an incredibly technical and complex area of law so it is hard to understand how employers themselves can reasonably be expected to understand what is required. Even employment judges have difficulty in grasping the issues as demonstrated by the number of successful appeals. As I’ve pointed out before it is remarkable that most claims in employment tribunals involve more complex legal issues than those dealt with in our civil courts but that is the reality. Whether that should be so is of no help to employers who have to deal with the legal system that we have.

That is why employers simply cannot rely on the outdated view that they haven’t encountered the claims which need to be dealt with by others and therefore don’t need to worry. An employment tribunal claim can cause untold inconvenience in terms of time, disruption and unexpected expense. It’s worth bearing in mind that many of the awards which can be made in tribunals are unlimited and can therefore cause the failure of otherwise successful businesses. Should this be the case? The government knows about the problem so there are headlines such as “Firms get powers to sack the slackers” and an “Employers’ Charter” which presage an extension of the time limit for bringing an unfair dismissal claim from the current one year to two years and the requirement for claimants to pay a fee for bringing an employment tribunal claim. Proposed fees are suggested as being in a range from £30 to £500 (according to the Financial Times) but the absence of legal aid for employment claims means that these proposed changes will be vulnerable to “access to justice” arguments.

These issues mean that employers cannot responsibly take the chance that they will get away without claims being made against them. It’s more important than ever to make sure that documents, policies and procedures are right up to date and that is how CLB Employment Solutions comes into its own. Our access to specialist employment lawyers removes the onerous requirement on employers to make sure that all their arrangements for employees are correctly drafted and up to date and that potential problems which arise with employees are dealt with properly and with a minimum of risk. Subscribers can also opt to obtain reasonably priced insurance to guard against both legal costs and awards of compensation. Can you afford not to have appropriate cover in place? For further information about our comprehensive employment law and insurance service please call free on 08000 320 974 or email enquiries@clbemployment.com.