Employment tribunals will be among the last of the major arms of the courts service to be reformed as part of the government’s £1bn modernisation initiative. But the government remains tight-lipped about any prospect of relaxing fees.
Publishing a consultation yesterday afternoon on reforming the employment tribunal system, the Department for Business, Energy and Industrial Strategy and Ministry of Justice said tribunals ‘have not kept pace with changes in society or, in particular, with the way that users want and need to interact with our systems’.
The ministry hinted that employment tribunals would be reformed when it announced its £1bn plans for streamlined and largely digitised courts nearly three months ago.
The consultation paper states that, uniquely among the tribunals managed by HM Courts & Tribunals Service, the secretary of state for business, energy and industrial strategy is responsible for policy and legislation on procedural matters in employment tribunals.
The government proposes transferring responsibility for procedural rules to the independent tribunal procedure committee. The committee’s membership would be revised to include ‘appropriate’ representatives from the employment sector such as an employment judge and ‘suitably experienced’ practitioner.
The senior president of tribunals will be responsible for determining panel composition. Non-legal members would be deployed where circumstances require it, rather than being called upon as a matter of course, the consultation paper states.
Case management functions would be delegated to relevant staff. However, the government notes that the delegations will be ‘wholly dependent’ on the judiciary’s agreement.
The Department for Business, Energy and Industrial Strategy would retain responsibility for employment law policy. The Ministry of Justice would be responsible for procedural policy.
The reform programme would not change the availability of the early conciliation process that occurs before a claim can come to a tribunal.
The government is seeking views on the factors that might make particular cases ‘suitable to be dealt with through a digital medium’. But it agrees with concerns within the profession that complex cases such as discrimination would be unsuitable for online determinations.
Law Society president Robert Bourns welcomed the consultation paper, saying it was ‘great news that the government is looking at reforming the tangled employment tribunal system’.
He added: ‘To improve access to justice, any reform of the structure of employment tribunals must be accompanied by a reversal of employment tribunal fees which were introduced in 2013 and have caused a significant reduction in the number of people seeking recourse through the tribunal’.
However, the consultation paper merely states that the government will publish the conclusions of its review on employment tribunal fees ‘in due course and any adjustments to the current fee structure will be brought for consultation’.
The government notes that for most tribunals, planned reforms can be delivered by secondary legislation within existing powers in the Tribunals, Courts and Enforcement Act 2007. However, changes to the employment and employment appeals tribunals can only happen through amendments to the Employment Tribunals Act 1996.
‘This means that the employment tribunals and the employment appeal tribunal are likely to be the last major tribunals to be fully reformed. They will, therefore, benefit from improvements identified during the implementation of reforms in other tribunals,’ the consultation paper states.