Employment Tribunal Service annual report

The annual report of the Employment Tribunal Service (ETS) often makes for a thought-provoking read, and this was never more so than in the case of the latest report for the year ending March 2005.


The chief executive of the ETS acknowledges that 'it was one of the most challenging' years since the service became an agency in 1997, a key reason being the new procedures that came into force on 1 October 2004 to implement the Employment Act 2002. The report notes that: 'Workload during the year continued the gradual downward trend that has existed for the last five years. We received just over 92,000 claims ... of which around 86,000 were accepted. This represents a 25% decrease on claims received in 2003-04 but it is important to point out that the downward trend in claims has not been that marked. The 25% drop is to some extent because 2003-04 we experienced a "surge" in the number of claims which was as a direct result of a couple of very large multiple claims.'


One does not necessarily anticipate that many employment lawyers will be facing a shortage of work in the near future, but these figures are not the only straw in the wind. Although it is of less significance than the decline in the tribunal caseload, the recently published annual report of the Central Arbitration Committee has also noted a decline in workload - the number of new recognition applications fell by 20% on the previous reporting year.


As regards employment tribunals, a combination of increasing efficiency plus the declining caseload no doubt account for the ETS managing to exceed its target of bringing 75% of cases to a first hearing within 26 weeks. The average award of compensation in unfair dismissal cases is now £7,303, a figure that contrasts with the average award in race, sex and disability discrimination cases - £19,114, £14,158 and £17,736 respectively.




Age discrimination - consultation


Last month, the Department of Trade and Industry published: Equality and Diversity: Coming of Age, a consultation document on the draft Employment Equality (Age) Regulations 2006. Responses are sought by 17 October 2005.


The age regulations will apply to all workers and to people who apply for work, as well as covering access to vocational training. The rules will prohibit direct and indirect age discrimination, harassment and victimisation.


In most circumstances, it will be unlawful to treat people differently on the ground of age. However, employers and others with obligations under the age regulations will be able to justify doing so, but only by reference to specific aims and only if it is appropriate and necessary in the particular circumstances ('objective justification'). They will have to produce supporting evidence if challenged - mere assertions will not suffice. Laws dealing with other forms of discrimination provide only for limited possibilities of justifying direct discrimination. The age regulations are unique in that the potential for justification will apply equally for both direct and indirect discrimination.


Decisions about recruitment, selection and promotion should not normally be based on age, although the age regulations do not deal specifically with these matters. Different treatment on the ground of age in these areas will only be lawful if the employer can establish objective justification. The age regulations will also contain a number of provisions allowing the use of length of service as a criterion in pay and non-pay benefits. For other types of different treatment on the grounds of age in employment benefits (for example, the use of a minimum age) only the general test of objective justification will provide justification.


The age regulations will contain a national default retirement age of 65, so it will not be discriminatory to retire employees at or above the age of 65. Lower retirement ages will only be possible if the employer can justify them objectively. There will be a new procedure to be used for any compulsory retirement - the 'duty to consider' procedure. An employer who wishes to retire an employee will have a duty to notify the employee in writing not more than 12 months and not less than six months before the intended date of retirement. At the same time, the employee must be told that he has the right to request working beyond the intended moment of retirement. If the employee makes such a request, the employer will have to consider it seriously. The aim is to stop unplanned retirement being used as a 'back door route for dismissal, redundancy or termination of contract for any other reason'.


The current age limit for unfair dismissal and redundancy rights will be removed. However, retirement will not constitute unfair dismissal if it is at or after 65 (or the employer's own lower retirement age, if this is justified) and the employer had followed the 'duty to consider' procedure. It is recognised that many rules in pension schemes are necessarily age-based, and the age regulations will effectively exempt most age-related rules and practices in pension schemes. For example, it will remain possible for employers to offer new employees a pension scheme which is different from the one held by existing employees.


The default retirement age will be monitored so that in 2011 a view can be taken as to whether it continues to be necessary. The review will be evidence-based and the default retirement age will be abolished if evidence shows that 'the expected culture change' has been achieved and the default retirement age ceases to be necessary.


The regulations are to come into force on 1 October 2006.