employment tribunal

Employment Tribunal Rules

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Mr Justice Underhill, who was asked by the Government last November to carry out a fundamental review of the Employment Tribunal rules, has recently announced his findings and recommendations.

The purpose of the review was to look at streamlining the Tribunal process, increase understanding for all parties and reduce costs.

The key points recommended in the review are highlighted below:-

  • An early paper sift where an Employment Judge will review initial papers and consider directions and strike outs where a claim does not have reasonable prospects of success.
  • Combining Case Management Discussions (CMDs) and Pre-Hearing Reviews (PHRs) and renaming them “Preliminary Hearings”. This will enable certain applications such as striking out all or part of a claim to be heard earlier on in the process.
  • Employment Judges to have an express power to limit oral evidence and submissions in Hearings.
  • Removing the £20,000 cap on the Tribunals’ power to assess costs. This will remove the need to refer higher cost claims to the County Court.

Employment Relations Minister, Norman Lamb, thanked Mr Justice Underhill for his “sensible” and “well thought of” recommendations, which he would be considering. Mr Norman Lamb said that his department would announce their intentions in this regard, “in due course”.

To view the full report please follow this link

Written by Edward Aston

15th July 2012

The Enterprise and Regulatory Reform Bill

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The Enterprise and Regulatory Reform Bill was presented to Parliament on 23rd May. The key employment law reforms under the Bill are listed below:

Mandatory Acas Pre Conciliation:

Prospective claimants will be required to contact Acas before they initiate certain types of employment tribunal proceedings. This is intended to help both parties come to a resolution before the dispute enters into the tribunal system.

Introduction of Legal Officers:

Low value or simple tribunal claims will enter into a “rapid resolution” system whereby if both parties give written authority, the claim will be heard by a legal officer without the need for a hearing.

EAT hearings to be heard by a single judge:

Employment Appeal Tribunals (EAT) will be heard by a sole judge unless ordered otherwise.

New Limits on Unfair Dismissal Compensatory Award:

Currently the maximum award for unfair dismissal is £72,300 although in practice awards for these claims are usually much lower. The new bill provides that the Secretary of State will be given the power to limit unfair dismissal compensatory awards to a set amount, such as one year’s earnings or a set number of weeks pay. However, any set amount would not be able to be lower than the national medium earnings (currently circa £26,000 per annum) or higher than three times the national medium earnings. It is currently unclear whether all businesses will have the same set amounts allocated or if for example, lower thresholds may be set for smaller enterprises.

Financial Penalties for employers:

The tribunal will be able to impose penalties on employers who breech a claimant’s employment rights and whose behaviour is said to have had an “aggravating feature.” This “aggravating feature” is not currently defined but suggests intentional disregard or actions carried out with specific malice. Where a compensatory award is made to a claimant, the employer would have a penalty imposed of 50% of the award given with the ability to reduce the amount by 50% if paid within 21 days. The financial penalty would be subject to a minimum of £100 and a maximum of £5,000.

Compromise Agreements to be renamed:

The Government believes that by renaming “Compromise Agreements” to “Settlement Agreements” will “more accurately describe an agreement that is about delivering a satisfactory solution for all parties.”

Whistleblowing claims:

Definition of “qualifying disclosure” in Whistleblowing legislation will be limited to disclosures “in the public interest.”

The majority of the employment law reforms will come as no surprise to employers although the proposals surrounding the cap around unfair dismissal have not been previously suggested. It reflects a clear attempt to try and lower the awards nearer the higher end of the current cap and will surely be welcomed by employers. The Bill in its entirety appears to be a commitment from the Government to cut the cost of doing business and eradicate red tape. The Bill will be subject to a second reading in Parliament on 11th June 2012, the Bill could be subject to amendments as it goes through the Parliamentary process.

Written by

Edward Aston

Discrimination – Claims by unsuccessful Job applicants

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In the case of Meister v Speech Design Carrier Systems GmbH the job application of Miss Meister, a Russian National was rejected without interview even though her level of experience corresponded with the requirements of the post. In pursuance of her sex, age and race discrimination claims she sought production of the successful candidates file as she believed that this might show that she was more qualified than that person.

The Court held that she was not entitled to access to the successful candidate’s file but went on to say that the employer’s refusal to grant access to the information “may be one of the factors to take into account in the context of establishing facts from which it may be presumed that there has been discrimination.” They added that a consideration of those factors “might also include, in the present case, the fact that Miss Meister was at least equally qualified but not even called to interview.”

Judges to sit alone in unfair dismissal hearings

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The draft Employment Tribunals Act 1996 (Composition) Order 2012 has been published and is expected to come into force on 6th April 2012. This Order will enable Employment Judges to sit alone in unfair dismissal cases.

The current position is that unfair dismissal cases are heard by an Employment Judge and two lay members. The draft Order is intended to speed up the process and reduce costs in the Tribunal system. It is estimated that the cost saving will be over £3 million per year in lay members fees and other associated costs