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.....


  1. Recycling money at its very best! Agreed, lay members contribute very little if anything; leave the legal decision making to those who are competent to do so.

  2. Re the lay members - it is true that appeals can only be based on errors of law but is it not arguable that the lay members still have value where a case is on the basis that on employment tribunal properly directed could have reached that decision?

    Sitting on the EAT probably also makes the lay members much more informed and better at what they do though I would not press this as a strong point.

    The vast majority of jobs being created in the private sector are short term contracts - usually under 1 year. The 2 years rule for unfair dismissal claims will render these tribunals useless to the vast majority of the working population. You have given some figures in your post.

    Altogether, IMHO, it is a nasty set of reforms from the worker's viewpoint.