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. This will come into force in 2013, but the level of fee will not be set until after a consultation process has been carried out. Undoubtedly this will put some claimants off; however, it won’t necessarily be just those claimants with weaker claims who are deterred. Some may have perfectly good claims but not the means to find, say £50 or even £25. The likely outcome could well be that claims continue to be brought using no win no fee “after the event” insurance but the number of claimants representing themselves (for which the tribunal system was supposed to be designed) will drop. Solicitors for claimants will undoubtedly offer to pay the fee on behalf of their clients and this can provide a further disincentive to settlement because they will want to hold out for the highest possible settlements in order to maximise the returns on their investments.
Other steps which will be introduced without waiting for the outcome of the fundamental review of tribunal procedure are:
- – Increasing the deposits claimants can be required to pay in weaker cases to £1000 from £500;
- – Increasing the cap on costs awards to £20,000 from £10,000;
- – Changing the rules on witness expenses, so they are paid by the party calling them, instead of by the state, and recoverable from the losing party; and
- – Introducing a rule across the board that witness statements need not be read out in full – this is already common practice, but not yet universal.
In addition to these changes, some more housekeeping measures are planned. The one which will have most direct impact will be a change in how redundancy payments and tribunal awards are calculated: figures will be rounded to the nearest pound.
Longer term measures being considered include:
- – Delegating certain decisions to non-judges – either specially trained administrators or legal officers;
- – Changing form ET1, or at least giving better guidance as to how to fill it in correctly;
- – Increasing powers to strike out claims; and
- – Increasing the types and numbers of cases where employment judges sit without lay members.
A significant new departure will be giving tribunal judges a discretion to impose financial penalties of between £100 and £5000 (calculated as a proportion of the award of compensation) on employers who breach their employment obligations – to act as an incentive to follow good practice.