As suspected in response to last month's Head-2-Head, a large majority of you thought that employers should be able to dismiss their employees for comments made on social media. Perhaps more interestingly, an eighth of survey respondents would rather use social media than personal communication! Full results of the survey are here.
This week's Head-2-Head discusses the Government's proposals to limit the ability of a party in Tribunal proceedings to obtain a postponement of the hearing. Against the backdrop of a massive drop off in Tribunal claims, Tom and David argue whether the proposed changes are a valuable necessity or a pointless promise. Don't forget to cast your vote.
The proposals are a step in the right direction. Eighty per cent of postponements are at the request of claimants. It is all too easy to take a superficial view of the employment world and think that someone - often a dismissed or upset worker - should be able to act as they please at Tribunal while the corporate respondent has to take it on the chin. This overlooks the immense costs and disruption that postponements cause companies as the timetable which the respondent was working to is allowed to slip. The great personal toll on the respondent’s witnesses, who will now have to rearrange their plans, should never be overlooked.
Only an employee, never an employer, can bring a claim in the Employment Tribunal. In turn, it is only right that the employee pursues their claim efficiently. Indeed, the “Overriding Objective” of the Employment Tribunal system places an obligation on both parties to avoid delay. All too often though, we see judges allowing delay for two reasons that come up time and time again: witness availability and sickness. Sorry, but the claimant must get their case in order and be able to manage their witnesses if they are going to put an employer through the Tribunal system. Genuine illness is, of course, unfortunate, but how many times have we seen an employee with “stress” seek a postponement in the desperate hope that there will be one last chance of settlement?
What is required is a firm Tribunal timetable at the start of the hearing to which both sides adhere. (Of course, if the respondent was itself able to abuse the timetable, then it could not claim any disadvantage should the claimant seek to postpone.) This will not impede access to justice but will enhance efficiency. In this age of austerity when some very hard and, indeed, unfair decisions have been made by the Ministry of Justice, this is one that can improve the system. As the great reforming Prime Minister, William Gladstone, said: “Justice delayed is justice denied”.
I would agree that the Government’s proposals do not go far enough. They seek to limit postponements to no more than two (perhaps two too many) unless there are “exceptional circumstances”. This still gives a large discretion to Employment Judges to permit postponements. As before, when the Tribunal system has previously reformed itself, will there really be any noticeable differences? We don’t know yet but at least it’s a move in the right direction..
Call me sceptical but the proposed changes will alter nothing in practice. While proposals to stop hearings being adjourned sound superficially sensible, the reality is that they amount to no more than empty electioneering.
As justification for the changes, the Government highlights the fact that almost 70,000 Tribunal hearings were postponed in the two years to March 2013. What they conveniently fail to mention is that during this period there were 380,000 claims. By my calculation, that means that over 300,000 went ahead without any adjournments. In using figures to March 2013, it also conveniently sidesteps the 80% drop in Tribunal claims since fees were introduced. By a crude but direct correlation this reduces the 70,000 to 14,000 – not such a headline grabbing figure.
Further, the proposals make it clear that no party should generally be allowed to postpone hearings more than twice and that applications made less than seven days before the hearing in question should only be granted in exceptional circumstances. What we don’t know is how many of the 70,000/14,000 would have got through this “sift” but my guess is that it would be statistically negligible.
The Government highlights the length of time Tribunal proceedings can take as one of the principal drivers for the proposals. No heed is paid to the reduced waiting times likely to accompany the dramatic fall-off in claim numbers since the introduction of fees or the reduction in waiting times due to the number of cases now being heard by a judge alone as opposed to a full panel.
For completeness, the proposals make it clear that:
- where a postponement application made within seven days of the hearing is granted, the Tribunal should be obliged to consider a costs order against the person making it
- the rules will not apply to adjournments necessitated by something done or not done by the Tribunal or the other side
All of this can already be dealt with under the existing Tribunal Rules.
Finally, and perhaps most tellingly, is the statistic that around 80% of applications for adjournments are made by claimants. What the paper does not say is how many of those claimants were professionally represented. My guess is that it would be a relatively limited number. So, in reality, these amendments are mostly aimed at unrepresented claimants. Still, I’m sure they will have read at length and understand the fine detail of the proposed Employment Tribunal (Constitution & Rules of Procedure) (Amendment) Regulations 2015!
We’ve all been there. Ready to go, witnesses lined up, hotels booked, etc only to be informed by the clerk the day before that a request for an adjournments by the other side has been granted and can they have dates to avoid three months hence. The frustrations can be huge but these proposals, should they make it to Rules, will do nothing to alleviate the problem in practice. Some good headlines though!