England: employment tribunal system needs radical reform

Jonathan Smithers

Unlawful employment practices will continue to go unpunished unless the tribunal system is overhauled, the Law Society of England and Wales has warned.

The Law Society has published proposals to transform the employment tribunal structure to benefit employees, employers, and the administration of justice.

The complexity and cost of using the current system discourages people from bringing legitimate claims and businesses from defending wrongful accusations it argued.

The Law Society proposes a new employment tribunal structure, where;

  • Claims are dealt with flexibly, depending on their intricacy and the financial stakes involved.
  • All employment law disputes will be dealt with in a single jurisdiction consisting of four levels.
  • Simple cases, such as handling unpaid wages claims would be dealt with on a paper basis in Level 1.
  • More complex cases, such as multi-strand discrimination cases, would be heard by an experienced judge in Level 4.
  • This, said the Law Society, would create an efficient system where employers and employees could get a feasible recourse.

    Alternative dispute resolution exit points would be available throughout the system, and modern technology would be used to make sure people get the best advice and quickest outcomes.

    Law Society president Jonathan Smithers said everyone needs employment tribunals that are fair and affordable: “Employment tribunals must work for employers and employees.

    “People should not be discouraged from bringing legitimate claims or from opposing them because of the cost or complexity associated with the process.

    “Our proposed system would be easy for the public to use, as there would be a single entry point, and make sure that cases are dealt with in the most appropriate way.

    “The single jurisdiction would increase awareness of different types of alternative dispute resolution methods, including the benefits of solving the dispute before the hearing.”

    The Ministry of Justice is currently conducting a review into the introduction of employment tribunal fees.

    The fees were intended to transfer costs of running the employment tribunal system to users and to encourage employers and employees to resolve disputes without going to tribunals.

    However, people who have lost their job and are facing financial uncertainty are often unable to pay the fee.

    Mr Smithers added: “Ministry of Justice statistics show that since the introduction of employment tribunal fees the amount of disputes proceeding to the tribunal has collapsed by over 60 per cent.

    “The £1,200 that a claimant must pay for most types of cases is close to the average monthly salary, putting the tribunal well beyond the reach on many people, particularly those on lower incomes.

    “This could mean that bad employers are less likely to face challenge. Employment tribunal fees have widened the gap in the “two nation justice system” identified by the Lord Chancellor.”

    He added: “Access to justice in employment matters should not be limited to those with the means to afford these fees.

    “We believe that, by having a better system, the MoJ can make savings, which means they can scrap the current fees arrangement, and ensure that all employees can once again enforce their employment rights.”

    The Law Society will be submitting its proposals to the MoJ’s review.

    Read the Law Society proposals in full here.

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