Martin Partington: Spotlight on the Justice System

There have been two recent consultations which could affect the work of Employment tribunals and the Employment Appeal Tribunal. The first, considered here, is on procedure. The other, on fees, is the subject of a separate note.

As part of its Transforming our Justice System programme, in December 2016 the Government published a short consultation on how reform of employment tribunals might fit into the overall transformation programme. The Consultation Paper noted that because these tribunals were set up under the Employment Tribunals Act 1996, major change could not be achieved without reform of that Act. The Consultation Paper therefore noted that major change was likely to take rather longer to be delivered, given the difficulties of obtaining parliamentary time for an amending Bill.

In the interim, this consultation set out what seems to be a rather minor change, namely that the responsibility for drafting the procedural rules which apply to the work of Employment tribunals should be added into the work already being done by the Tribunals Rules Committee.

This may actually be a rather more controversial proposal than might at first appear, since many judges in both the Employment Tribunal and Employment Appeal Tribunal have long thought that they should be part of the court system, not the tribunal system. They argue that they deal with disputes between parties (which is more what courts do) rather than citizen-state disputes (which is more what tribunals do).

The problem with this argument is that courts do deal with citizen-state disputes as well as tribunals; and other tribunals do deal with party-party disputes.

In my view the essence of tribunals is that they should generally be less formal than courts, and also use specialist expertise where needed. These considerations seem to have tipped the balance in the Government’s thinking. My own view is that the Government’s proposals are sensible.

The consultation closed in mid-January 2017, so no final decision has been taken. It will be seen whether the Government’s initial view prevails.

For the consultation paper, see https://www.gov.uk/government/consultations/reforming-the-employment-tribunal-system