Last month saw the publication of the Government consultation document on reforming the Employment Tribunal system, a joint production between the Ministry of Justice and BEIS. For when the conversation falls into a flat spin at your next dinner party, here are the highlights, using the word at its most generous.
In summary, the reforms are intended to restore the Tribunal system to what it was intended to be when first created in 1964 – just, proportionate and accessible – before those objectives were overtaken by the increased complexity of the law, greater use of lawyers and chronically inadequate funding. So far so good, but look more closely at the document and we see also the wish to reduce the costs of the Tribunal system to the Government still further.
How will all these partially conflicting objectives be met? Here the consultation document is rather vaguer. The basic planks of the reforms suggested will be these:
- “Digitising the whole claims process” to speed up the resolution of disputes and allow users to “engage with the Tribunal at times and locations convenient to them“. No suggestion is made of night-shift Tribunal judges or clerical workers, so it is unclear how this really represents any material step forward over ordinary email. According to one paragraph clearly written by Judge Dredd, this will help “citizens to present their own cases simply and obtain justice more swiftly“.
- “A reduction in complexity in the language used in the Employment Tribunal“, though it is already one of the more informal judicial forums in that respect. We must hope that there are no pointers to how this will be done in the language of the consultation document itself which (including the Foreword signed by two Ministers) contains serial grammatical and punctuation errors, unused definitions and repeated use of the proposition that “panel members without legal expertise are asked to sit on panels according to their expertise [vis none, presumably] so that claimants can be confident that the decisions will be fair and informed“, or at least as fair and informed a legal decision as you can get from a panel member without legal expertise.
- The delegation of some case management functions to trained administrative staff under judicial overview, which is clearly sensible.
- The Ministry of Justice is still reviewing the impact of the introduction of Tribunal fees, a report originally due at the end of 2015, no doubt puzzling over how to square its new-found interest in making the Tribunal system more accessible with the inescapable conclusion that the fees it so strongly supported did exactly the opposite. http://www.employmentlawworldview.com/missing-you-already-justice-committee-torpedoes-no-show-government-review-on-employment-tribunal-fees/.
What the consultation document does not include is any detail at all of how in practical terms it is proposed to make access to justice faster and simpler and cheaper without meaning that it is no longer justice. There is no discussion of whether the existing ET powers, properly and robustly wielded, could achieve this – limits on adjournments and the size of bundles, more vigorous use of deposit and cost orders, more pressure on parties to particularise their cases properly at the outset, a more interventionist cutting off by the Judge of trivial or irrelevant lines of evidence or cross-examination, etc. In essence, all the delays and obstacles in fighting Tribunal proceedings are blamed here on the Tribunal system, whilst practical experience shows that in fact much of the problem can lie with the parties themselves, lawyers included.
In the end, digital or not, justice surely requires the witnesses to be heard, the papers to be read, views on credibility formed and often complex law considered. That takes a certain amount of time. To the extent that these reforms subordinate those considerations to speed, simplicity, political gain or (to a degree) cost, that may no longer be justice. It is way too early in the day to prophesy failure (after all, what could possibly go wrong where Government and major IT projects are concerned?) but it is hard to see at this stage who actually stands to gain from most of these proposals, except perhaps the Treasury.