Employment analysis: Richard M Fox, vice president of the Employment Lawyers Association and chair of its Single Employment Court Working Party, explains the reasons behind the proposal for a single employment court and its potential implications.

What is the thinking behind the proposal for a single employment court?

The idea was proposed by David Latham, the outgoing President of the Employment Tribunals (England & Wales) in a speech to the Law Society on 4 June 2014, and has been approved by his successor Judge Brian Doyle.

The proposal is to have a ‘one-stop’ shop for all employment-related claims. These are currently heard before either the employment tribunal, the High Court or the County Court. The new Unitary Court would hear not only those employment cases being litigated, but also those being mediated.

What are the benefits sought from a single employment court?

Judicial (employment) expertise from across the court system would be brought together within one single court. Cases would not fall between cracks, as now. Breach of contract claims on termination of employment of whatever size could be heard by the court, whereas now, the employment tribunal can only hear such cases on termination of employment up to £25,000. Also, non-employment discrimination cases in the field of goods and services would be heard within the new court.

What are the headline concerns of any move to a single employment court?

What rules of procedure would apply? Would cases be managed pursuant to the employment tribunal rules of procedure, or by the Civil Procedure Rules 1998, SI 1998/3132 (CPR)?

What costs regimes would apply? The adverse costs system as currently applied in the High and County Courts, or the more restricted regime in the employment tribunal?

Would judges hearing the most heavyweight cases in any new single employment court have the requisite breadth of legal expertise? Would their focus become too narrow, and their wider knowledge of the common law and general commercial principles, atrophy?

Identifying and streaming cases seem to be recurring issues—how might these be addressed under a single court system?

The Law Society, in its paper released in September 2015 ‘Making Employment Tribunals work for all’ suggested having four levels of case:

  • level 1 for the hearing of ‘simple’ straightforward cases, such as unpaid wages
  • level 2 for other straightforward cases such as redundancy payments or failure to consult
  • level 3 where early neutral evaluation and alternative dispute resolution (ADR) would be encouraged, and
  • level 4 for cases currently heard under civil litigation principles in the High or County Courts

The Employment Lawyers Association, in its report released in April 2016, supported the idea of having levels for the hearing of employment cases, but proposed a more concertinaed system. Their idea was to have three tiers:

  • tier 1 would be for online summary determination of simpler claims
  • tier 2 would be for cases currently handled under the existing employment tribunal rules of procedure, together with any additional categories of claim that employment judges would in future be empowered to hear
  • tier 3 would be for all other employment cases which are currently handled under the CPR in the High Court

How has the proposal resonated among employment lawyers?

The Employment Lawyers Association conducted a survey on the future of employment tribunals in April 2015. Most members responding to the survey believed a new court would be an improvement on the current system (64%).

Currently there is not a unanimous view among employment lawyers as to whether we should have a single employment court. Some believe the process would ultimately regress into something similar to that which we have now, given the significantly different characteristics of the type of claim that we deal with. Others feel the time is right to take a careful look at our system, and come up with a more co-ordinated, technologically advanced and ADR friendly procedure, fit for purpose in the second decade of the twenty-first century and beyond.

This article was first published on Lexis®PSL Employment on 27 April 2016. Click for a free trial of Lexis®PSL.