David Renton comments on some robust judicial support for the current system of employment tribunals.
Between January and April this year, the government consulted on plans to alter the Employment Tribunal system. At the heart of the consultation document, “Resolving workplace disputes”, were proposals to make it more difficult to bring claims. One suggestion was that the qualifying period for an unfair dismissal claim should be extended from one year to two. Another idea was to introduce issuing fees for new Tribunal claims (although noticeably, there was no suggestion as to what the amount of the fee would be). There were also plans to introduce something like the old Part 36 offers, an idea taken form the much more formal Civil Procedure Rules.
Of importance to lawyers was not just the content of the proposals, but the press coverage which followed, in which these reforms were praised as a necessary corrective to a Tribunal system in which claimants were supposedly able to extract huge payments for meritless claims. As I write, I have beside me a letter from an (admittedly unrepresented Respondent) offering to settle a claim for a derisory amount. The offer is “justified” by a cutting from an old issue of the Daily Mail.
But a clue as to the thinking of the senior judiciary towards the proposals is provided by the case of Gayle v Sandwell & West Birmingham NHS Trust, a decision of the Court of Appeal given at the end of July 2011. Commenting on the delays caused in that case, and on criticisms of the Tribunal system, Mummery LJ said this:
“If workers are given rights, there must be properly qualified, impartial and independent tribunals to adjudicate on them in accordance with a fair procedure. If workers are not given the necessary means for the just adjudication of their claims, procedures of a more rough and ready non-judicial kind may be used. The alternative procedures would probably not be impartial, independent or just, and are unlikely to do much for public order, social harmony or national prosperity.”
It remains to be seen what our legislators make of the “public order” case for the retention of the present system.