Friday 28 January 2011

Justice versus Cuts....More on Employment Tribunals

Interestingly the press release I reviewed yesterday did not reveal the full story...there is more:

  • CIVIL PENALTIES - whenever a Tribunal awards compensation it will award 1/2 that sum again to be paid to the Treasury subject to a minimum of £100 and a Magistrates' Court maximum of £5,000.  That is what we call a FINE - which usually is adjudged beyond reasonable doubt and with heightened procedural safeguards.  The average award for unfair dismissal is apparently just short of £5,000 - now it will be £7,500, with £2,500 of that going to HMG.  Why?  These penalties will terrify business into settling - cheaper for the Tribunal Service who will not hear the claims plus to put it into the Consultation Paper's own words: "Penalties would be payable to the Exchequer, rather than the claimant, providing some element of recompense for the costs incurred to the system through the employer's failure to comply with their obligations....."  It is so clearly all about saving money and little else, certainly not justice.... (What is actually quite amusing is that many loosing respondents before Employment Tribunals are public sector employers - so presumably this is just recycling money?)
  • Judicial power to strike out a claim without a hearing and of the Tribunal's own motion.  This is going to be made article 6 compliant by permitting the disappointed claimant to apply to have the decision reviewed.  Reference is made to the provision for this in the CPR - I would love to see how many District Judges have actually used this power - I think you would find that most District Judges think it is fairer to hold a hearing and give notice rather than to rely on the usually unrepresented claimant applying for a hearing after the event.  But I suppose not having a hearing and not hearing both sides' oral submissions is cheaper.
  • The consultation paper tells us that the increase in the qualifying period for unfair dismissal will take 2.9 million employees out of the scope of the right and up to 4,700 claims out of the tribunal system.  Cheaper but otherwise a travesty.
  • Removing lay members from the Employment Appeal Tribunal...I am in favour of this - I could never understand why there were lay members on a Tribunal solely concerned with errors of law.....

Thursday 27 January 2011

Good bye Employment we knew them...

The Govt today has announced a consultation on the following proposed reforms to employment law and Employment Tribunals:
  • Giving businesses greater confidence to hire new staff by increasing the qualifying period for employees to be able to bring a claim for unfair dismissal from one to two years - this will also ultimately reduce the number of disputes that go to Employment Tribunals; indeed it will - equally it will remove a large swathe of employees from this fundamental right -funny how they don't mention that....
  • Encouraging parties to resolve disputes between themselves as early as possible – requiring all claims to be lodged with Acas (Advisory, Conciliation and Arbitration Service) in the first instance to allow pre-claim conciliation to be offered. This also includes introducing settlement offers to encourage parties to make reasonable offers of settlement to avoid Tribunal hearings and encouraging parties to consider other forms of early dispute resolution such as mediation;  Happy to hear that Part 36 is going to be imported into Tribunal proceedings - but please don't foist claims upon ACAS - they can hardly cope as it is and are largely useless.
  • Speeding up the tribunal process – extending the jurisdictions where judges would sit alone to include unfair dismissal, introducing the use of legal officers to deal with certain case management functions and taking witness statements as read. This will result in Employment Tribunal resources being used more efficiently and allow cases to be listed and heard more quickly, saving time and cost; and  Good bye to the industrial jury - I am strongly against this  - I did an unfair dismissal case last week which was won by the employee on the majority vote of the lay members against the judge (who was far too case hardened and unfriendly to the employee).  Legal Officers rather than judges undertaking case management, that'll work, not.
  • Tackling weak and vexatious claims – providing the Employment Tribunals with a range of more flexible case management powers so that weaker cases can be dealt with in a way that does not mean disproportionate costs for employers.Summary judgment does not work in the Employment Tribunal save where it is obvious that a claim is misconceived (and Tribunals already strike out those claims) - claimants should entitled to argue their cases fully before lay members rather than having their claims summarily judged at a premature stage by a judge alone...
There is also a commitment for the Ministry of Justice to consult separately on introducing fees for Employment Tribunal cases and appeals, to ensure that users contribute towards the cost of running the system. But they'll have to be fee remission to comply with article 6 ECHR -and for former dismissed employees on JSA, that will mean no fees?
The consultation document also includes proposals to:
  • Increase the provision of information – aimed at reducing speculative claims, this would require more information on the nature of the claim being made and to include a statement of loss. It will help parties to decide whether to agree a settlement offer or proceed to a Tribunal hearing;So scrap the current user friendly claim forms and introduce formal court pleadings - in other words back to the state of affairs the tribunals were designed to avoid.
  • Withdraw the payment of expenses - encouraging parties to either settle earlier or reduce the number of witnesses they call; and, Agreed
  • Introduce financial penalties for employers found to have breached rights – aimed at encouraging greater compliance from employers and thus a reduction in the number of Tribunal cases.Err....add civil or criminal penalties to the causes of action before the Tribunal?  That'll help businesses no end???
Some good points, but otherwise another bad day for justice....still some money might be saved, so that's OK then....

Tuesday 18 January 2011

Chilling effect of CFAs contrary to article 10

You may recall that it was Naomi Campbell suing the Daily Mirror which resulted in a new cause of action of 'breach of privacy' based on Article 8 ECHR being introduced into English Law.  After pursing the matter to the House of Lords Naomi obtained, in 2004,  the grand sum of £3,500 in damages.

Her solicitors (Schillings) then claimed costs of £1,086, 295.47.  In other words damages were 0.3% of costs.   One reason for this astonishing amount was that her lawyers' acted on a CFA in the House of Lords - meaning that they charged around £280,000 in fees and a 100% uplift on top.  

This has all wound up in the European Court of Human Rights where the Mirror Group has claimed that the recovery of the success fee against them is contrary to their Newspaper's article 10 right to freedom of expression.  

Interestingly enough the European Court of Human Rights has today agreed with the Mirror:

In such circumstances, the Court considers that the requirement that the applicant pay success fees to the claimant was disproportionate having regard to the legitimate aims sought to be achieved and exceeded even the broad margin of appreciation accorded to the Government in such matters.
..... Accordingly, the Court finds that there has been a violation of Article 10 of the Convention.

Basically CFAs and success fess cannot be a justified interference with article 10 because they are not confined to cases where impecunious claimants would not otherwise have access to justice.  Indeed Campbell herself was hardly impecunious.

The Court's conclusion is hardly surprising given that the Government is seeking to reform the funding of defamation proceedings for the reasons identified by the Court-  see review here

The only fly in the ointment for the Government is that the Mirror is asking the European Court to order the UK Government to pay it the success fee (circa £300k) in compensation .  The Court is to consider that at a later date - shame that the UK taxpayer may refund the fees of Messrs Schillings, which they, of course, will keep.......

Thursday 13 January 2011

32 Months for Edward Woollard

Chaytor steals from the public and gets 18 months - Wollard dropped a fire extinguisher from height and gets 32 months - not sure what I think about that comparison?  Is Wollard's offence worth almost twice Chaytor's?  Perhaps they could set this conundrum at the next JSB sentencing course?  One to think about.

Sunday 9 January 2011

18 months for David Chaytor

I think it is quite a moment in English Legal History when a Member of Her Majesty's High Court of Parliament receives 18 months in custody for acts and omissions arising out of his elected office.  MPs from time to time might murder, insider deal or get caught speeding - but to be convicted of stealing from tax payers in relation to monies paid in compensation of being an MP - such acts of public corruption are little more Continental in flavour and rare in the UK.  Let's hope that the current trend is short lived......