There are proposals within the employment law arena for a single employment court that would deal with all the employment claims currently heard by employment tribunals, the High Court and the County Court. The Employment Lawyers Association (ELA) recently released its response to the idea.
This is an issue of real practical importance to employers. For a start, what rules of procedure would apply? It is currently being suggested that the answer to this will depend on whether a claim was originally heard in an employment tribunal, the High Court or the County Court. Employers would need to work out what rules would operate, and the confusion will make managing the claim within a business without recourse to outside lawyers less attractive. It would be better to say that if we do move to a single court, we need one rulebook that will apply to all claims.
This is an important issue, not least because it is the rules that set the appropriate costs regime. Currently it is rare to have an award of costs in employment tribunal cases. An employment judge would have to consider that the employee or employer acted vexatiously or unreasonably in bringing the tribunal claim, and that does not happen often. The advantage for employers is that if they lose a case, the employee is unlikely to have costs awarded. The disadvantage is that if an employer wins, it is unlikely the employee will be asked to pay the employer’s costs. In the High Court and County Court the ‘loser pays’ rule applies most of the time, so employees may have to pay around 75 per cent of the employer’s costs if they lose their case.
The big question is what regime should apply in a new single employment court? On this, ELA recognises opinion is very much divided, but a decision will need to be made.
Until recently, most employment tribunal claims were heard by a three-person panel: a legally-qualified judge and a representative from the employer and employee sides of industry. This gave employees and employers confidence that their claims were being heard by those in the know. For most unfair dismissal cases this system has effectively now been abolished. ELA has put down a marker that this issue should be put back on the agenda as part of the discussions around having a new single employment court.
We also now have an opportunity to take stock of our alternative dispute resolution strategy. This term encompasses methods for resolving workplace disputes that avoid the need to have a trial before a court. They are a cheaper, quicker and more private way of reaching agreement between employer and employee. One idea is to have a centre for mediation built into the court itself in order to underline the importance of alternative dispute resolution and its incorporation into the system. Employees could have their ‘day in court’ but in a less expensive and less public way. For many employers this could prove to be a popular move.
Most businesses are becoming increasingly digital in everything they do, yet the courts and tribunals remain as ‘paper heavy’ as ever. ELA has recommended many improvements in terms of technology. For example, we have suggested cases should be begun as now by filing the ET1 form online, but that the employee side should be able to upload the principal documentation in the case via a portal, with the respondent company doing likewise. There could then even be an online determination of simple disputes. This would remove the need for preparation of oral submissions and over-comprehensive and costly procedures.
The time is ripe for a careful look at the structure of our employment courts, but care must be taken before any decisions are made, and employers should make their voices heard before it is too late to do so.
Story via – http://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2016/05/12/a-single-employment-court-could-be-made-to-work-says-legal-profession.aspx