In 1957 the Franks Report set out characteristics which should be reflected in tribunal procedures. In addition to the key requirements of openness, fairness and impartiality, tribunals should provide a fair hearing at which citizens can state their case without the need for legal representation and at hearings conducted with an appropriate degree of informality.
I was reminded of these guidelines when reading the recent decision of the Employment Appeal Tribunal in the case of Baker -v- Metropolitan Police Commissioner. Mr Baker appealed against the decision of an employment tribunal to refuse to hear his claim of disability discrimination and dismissing his claim of victimisation under the Race Relations Act 1976. He is a black man of British origin who suffers from dyslexia and failed part of his police training. He claimed that he was subjected to racist abuse while at a police training centre.
It is now necessary to complete a prescribed form (ET1) in order to submit a claim to an employment tribunal. Mr Baker did not initially have legal representation and he completed the form himself. He claimed race discrimination and ticked the box for disability discrimination although he did not provide particulars of the alleged disability discrimination. After doing so he was dismissed when he failed to report for training. He filed two further ET1s which particularised the claims of race and disability discrimination.
The tribunal found that he not claimed for disability discrimination in his first ET1 because he had not provided any particulars and the disability discrimination claims in the subsequent ET1s were dismissed on the merits or because they were out of time. Perhaps surprisingly, the EAT found that the employment tribunal was entitled to conclude that there was no disability claim presented in the first ET1 because its decision in this regard was neither in error nor perverse. However, it was suggested that a review of the form’s wording might be helpful in order to enable a claimant to identify “more precisely” the type of discrimination complained about.
However, the tribunal had erred in refusing to hear and determine an application to amend the first ET1 to “re-label” the events as falling within the scope of the protection afforded by relevant provisions of the Disability Discrimination Act and this issue was referred back to the tribunal to be considered afresh.
Although undoubtedly not the initial intention, the technical rules which govern the administration of such cases make them much more complicated than the majority of county court cases. Add to this the technical complexity of employment law in general and it is verging on farcical that claimants should be expected to conduct their own claims without legal representation since legal costs are not generally recoverable. On the other hand, county courts are more occupied with simple road traffic accident claims than any other type of matter. These cases very rarely raise issues of any technical complexity, as demonstrated by the new forms based system for processing them which comes into effect on 30 April. Surely the time has now come to have the road traffic claims dealt with in a tribunal process with relatively low fixed costs and to transfer employment cases to the jurisdiction of the county court where reasonable legal costs can be recovered. There is no longer an issue concerning access to justice on the basis that lawyers would continue to offer no win no fee representation with after the event insurance to provide cover for liability for adverse costs. For employers, there would be the considerable benefit of dissuading former employees from lodging speculative or vexatious applications.