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. He remarked:
Contrary to the way that some observers see it and the way that some participants do it, justice in the tribunals (and in the courts) is not a war, or a battle, or a game. It is not a talent contest for spotting the winner and awarding a prize: it is (or certainly should be) a reasonable, sensible and civilised way of sorting out disputes that the parties have unfortunately been unable to sort out themselves.
In the past, employment regulations have been tinkered with in the hope of reducing the numbers of cases going to tribunal, and thus the cost of running the tribunal service; at least some of these have foundered because they have failed to take into account the impact of human nature in the way in which cases are pursued. For example, for a while the scope of ACAS conciliation was confined to a fixed period in the early stage of proceedings – a measure which was abandoned when it did not have the desired effect of encouraging early settlement. Parties seem not to be ready to contemplate conceding any part of their case until faced with the cold reality of a hearing date, notwithstanding the fact that it is far more cost effective and less stressful to resolve disputes at an early stage.
Lord Justice Mummery’s point is incontrovertible; the government needs to make sure it does not lose sight of the human factor when introducing new rule changes. Both introducing a fee for tribunals, and increasing the qualifying period for unfair dismissal (as announced at the Conservative party conference) may have unintended consequences which mean the flow of cases to tribunals is not reduced as much as hoped (leaving aside issues of access to justice for those who have lost their jobs). Employees may bring discrimination claims where they may not previously have done so, and those who can raise £250 to start a claim may persist with it longer and expect bigger settlement offers: once a fee is paid for a hearing, an employee will no doubt be even more set on having his day in court than ever.