Tribunal reform recommendations

According to government statistics (ET quarterly statistics) published on 13 September 2018, employment tribunal (ET) claims increased by 165% in April-June 2018 compared with the same period last year. This suggests that the eradication of ET fees following R (on the application of UNISON) v the Lord Chancellor [2017] UKSC 51 last July is still being felt. 

However, only £10.65m of the £32m in ‘unlawful fees’ (charged by the government during the four years tribunal fees were levied) have been returned since the refund scheme was set up in October 2017. 

While claims may be up, employment lawyers will be well aware that so are outstanding caseloads – which the statistics say are at 130%. However, the Judicial Appointments Commission exercise to recruit 54 employment judges is now under way, with appointments in the new year, so hopefully change is on the way. 

Another potential change on the horizon is contained in the Law Commission ET consultation paper, which seeks to review employment law hearing structures. 

The terms of reference are to: review the jurisdictions of the employment tribunal, Employment Appeal Tribunal, and the civil courts in employment and discrimination matters, and make recommendations for their reform. 

Contained within this 102-page consultation are 54 questions, seeking answers to issues such as extending employment tribunal limitation deadlines from three to six months; permitting those still in employment to bring breach of contract claims, and removing or increasing the £25,000 limit for such claims; deciding if employment tribunals should be given concurrent jurisdiction over non-employment discrimination claims and if employment judges should be deployed to sit in the county court to hear non-employment discrimination claims; and the creation of an informal specialist list to deal with employment-related claims and appeals within the Queen’s Bench Division of the High Court.

While the commission’s recommendations are not in any way binding, the greater the response, the more likely we are to persuade parliament to make some practical and helpful changes within this jurisdiction. Responses may be posted online by 11 January 2019. 

Speaking of the need for change, employment lawyers will no doubt have had recent experience of tribunals not responding to correspondence, claims not being served, hearings being cancelled due to a lack of judges, or – a personal favourite – the hearing on a Monday being cancelled on the previous Friday afternoon because one of the parties had not been served the claim (I thought they just could not be bothered to answer my emails). 

So what is the position where a tribunal fails to do something it should – for example, where it sends a judgment to the wrong address and the particular party that wishes to appeal does not receive the decision? According to the Employment Appeal Tribunal Rules 1993 (EAT Rules), appeals against employment tribunal judgments have to be made to the EAT within 42 days of the judgment, or written reasons being ‘sent to the parties’ (rule 3(3) of the EAT Rules); and the EAT is allowed to extend this rule under its general discretion (rule 37 of the EAT Rules).  

The answer according to the Court of Appeal, as decided in Rana v the London Borough of Ealing & Anor [2018] EWCA Civ 2074, is that a judgment is deemed to be ‘sent’ by the employment tribunal, but since those parties wishing to appeal had not received the judgment, then ‘the underlying principle is that discretion should be exercised so that the party in question has the same time to appeal from when the judgment or reasons are in fact sent as if they had been correctly sent in the first place’ (paragra 70).

Thankfully, judicial common sense continues to prevail, but, as Underhill LJ said: ‘It is regrettable that it will have taken so long for the appeals to reach [the court]… That is, I fear, largely a result of the extreme listing pressures in this court (now fortunately somewhat abating).’ Better still if the judgments are sent to the correct parties in the first place, and more administrative staff are recruited to manage the workload brought on by the increase in ET and EAT claims so that such cases do not have to go to the Court of Appeal.