I am actually much less tedious at dinner parties than this makes me sound, but I was reading the Annual Report of the new President of the Tribunals the other day and found some moderately interesting bits and pieces, if you like that sort of thing. In no particular order:
- It is clear that the Employment Tribunal system is still much exercised by the impact of fee-charging. 2014/15 is the first full year since fees were introduced and though the Presidents of the EAT and the English/Welsh and Scottish Employment Tribunals have done their best to strike a balanced position, all of them quite obviously regard fee-charging as a mistake. In the Employment Appeal Tribunal, for example, appeals are down by a half, and by two thirds in Scotland. But as the EAT President points out with scarcely concealed pleasure, the success rate is unaltered, meaning that fees have had no deterrent effect on weak appeals at all.
- The drop in Tribunal cases since fees were introduced is also significant. In England and Wales, they are down by 40% on last year, and in Scotland by 63% since 2012. The more complex discrimination cases have dropped most of all – sex discrimination claims by a staggering 85% in Scotland. The Scottish President is clear that this is not justice either being done or being seen to be done. In other Scottish news, while there is a clear political will to drop fee-charging, no one seems clear whether the powers newly devolved from Westminster will actually allow this, or indeed anything else.
- The Employment Tribunals will subscribe to a new “digital by default” ethos which will in time (all being well, and of course what could go wrong where the UK Government and major IT projects are concerned?) allow the delivery of the Tribunals’ services “by video link on laptops, tablets and phones; or…online with parties and decision-makers increasingly being able to avoid a traditional face-to-face hearing“. While I can see the attractions for the Employment Judge in not having to actually meet the parties in person, I cannot help thinking this is not a good idea. Part of this is due to a recent chastening experience trying to do a telephone Case Management Discussion on a mobile phone with a signal seemingly broadcast intermittently from Mars, but part also is the denial to the Judge of some of the physical indicators of stress or deceit when witnesses give evidence. The Judge won’t see them flushing, sweating, hunching defensively or fidgeting, and small hesitations or tremors in the voice may be lost in the ether. However, given the falling claim numbers, this could just be an extended exercise in job creation – surely the ability to conduct a claim by phone from your own front room and just to hang up and blame a dropped signal if it all gets a bit much is likely to increase significantly the number of claimants willing to give it a go?
- Over the 50 years of the Employment Tribunal system, its judiciary has not lost its fabled sense of humour – how about this bon mot in the report of the EAT President: “If [unrepresented litigants] were to copy the example of some legal practitioners, they could be forgiven for thinking that the more material placed in writing before a court, the better – that quantity rather than quality of argument is what matters“. Most amusant, I am sure.
- The legislators are also doing their bit to keep the Tribunals busy. In 2014 and 2015 a full 43 new statutory instruments came into force in the employment arena. If it is any consolation it appears that the majority of these are part of the dropped spaghetti that is the shared parental leave regime, rather than anything employers actually need to know about.
- The Report also looked at dispute resolution short of the Employment Tribunal hearing. Statistics from the first full year of Acas pre-claim conciliation show that 15% of prospective claims referred to Acas, less than one in six, were settled through that process. However, a further 63% then disappeared through withdrawal or direct agreement with the employer, meaning that just one in five prospective claims raised with Acas ever made it even to the point of formal proceedings, let alone a full hearing. And on that point, the judicial mediation scheme (now available at the Regional Judge’s discretion for all cases of three days or more, not just discrimination claims) resolved 72% of all the cases referred to it at an estimated saving of around 100 hearing days.
- Last, the Employment Tribunal in Aberdeen is currently paying particular attention to questions of loss of office. Apparently its landlord declined to renew its lease and it now has until May to find somewhere else to live.