A Summary Of The Government's Consultation On Employment Tribunal Reform - Part 2

A Summary Of The Government's Consultation On Employment Tribunal Reform - Part 2

This article is a continuation from "A Summary of the Government's Consultation on Employment Tribunal Reform - Part 1" and outlines the latter points addressed by the government's consultation on employment law issues and resolutions:ET1 to include a schedule of lossThe government is concerned that employers sometimes do not have enough information at the outset of case to know whether to fight or settle. It therefore proposes to require claimants to fill in a preliminary Schedule of Loss (and possibly provide other mandatory information) as part of the ET1.Failure to accept reasonable offer will attract financial penaltiesThe government proposes to introduce a rule whereby either party can make a formal "without prejudice" offer to settle backed up by penalties for failing to accept it, if it turns out to be a reasonable offer. Further, where damages are awarded, the government envisages giving tribunals the power to make an uplift or reduction in compensation. Where there is no compensation awarded, the claimant's failure to accept a reasonable offer may be evidence of vexatiousness or unreasonableness, triggering a possible costs award.Employment judges to sit alone in most unfair dismissal casesWhile acknowledging that the industrial expertise of lay tribunal members "can be valuable", the government believes that there are significant advantages to employment judges sitting alone, and that this may lead to shorter hearing times.It proposes to widen the circumstances in which employment judges can sit alone, and in particular that they should normally hear unfair dismissal cases alone, unless they decide otherwise. This may prove controversial as some see unfair dismissal as the typical case in which the experience of lay members is invaluable, since knowledge of industrial good practice plays a key role in understanding the concept of unfair dismissal.Routine employment judge work to be delegated to "legal officers"There is also a proposal to free up employment judges from routine interlocutory work - such as requests for further information, amendment of pleadings, postponements and listing - and delegate this work to "suitably qualified legal officers". The government is seeking views on the types of work that could be delegated, and the qualifications and experience that would be necessary to perform this role.Witness statements to be taken as readTo cut down the length of hearings, the government proposes that witness statements should stand as evidence in chief, and be taken as read. Employment judges would have the discretion to vary this default rule in whole or in part, depending on the circumstances.However, this would not apply in Scotland, where witness statements are not generally used.Witness expenses will no longer be paid by the stateIt is also proposed that the expenses of parties and witnesses (travelling costs, loss of earnings etc) in attending the tribunal will no longer be paid from the public purse. Witnesses will be expected to attend tribunal at their own expense as a "civic duty", unless a witness order is made, in which case the party calling the witness would pay their reasonable expenses.Costs limit to rise to 20,000Currently an employment tribunal can only award costs in limited circumstances (for example, where the claim or defence was misconceived, or where a party acted vexatiously or unreasonably). It can only award a maximum of 10,000. Higher awards can be made if the matter is referred to the county court for detailed assessment, a procedure which the government thinks cumbersome.It is proposed to increase the amount that tribunals can award to 20,000. However, there is to be no move towards a general "loser pays" principle (as in the civil courts).Employers to be fined up to 5,000 (on top of damages) if they lose a caseMany of the proposals in the consultation document might be termed "business-friendly", in that they either make it harder for employees to bring claims or easier for a tribunal to throw the claim out if it is weak. However, one proposal attempts to redress this balance.The consultation paper proposes that tribunals would automatically levy a financial penalty on an employer who loses a claim (other than in exceptional circumstances). This would be in addition to the damages awarded to the claimant, and would be payable to the Exchequer.The penalty would be 50% of the award, subject to a lower limit of 100 and an upper limit of 5,000. However, it would be reduced by half if paid within 21 days, to encourage early payment. The government hopes that this would lead to greater compliance by employers, and therefore fewer disputes and fewer claims. There are likely to be further additions covering all areas of employment, recruitment and legality listed before the consultation draws to a close at the end of April, these will be documented when available.

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