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New consultations on Employment Tribunals and ill health and disability

12 December 2016

The Government has launched two new consultations, the first on reforms to the Employment Tribunal (“ET”) system and the second on work, health and disability.

The proposed changes to Tribunals are part of a wider programme of court reform intended to modernise claims handling, streamline access to justice and reduce costs. They are also intended to bring the ET system more in line with other statutory tribunals.

The green paper on work, health and disability is designed to help the Government comprehend why people with disabilities or long-term health conditions may struggle to get or keep a job. The Government says it wants to understand better what it can do to help them work.    

ET reform proposals

The Government intends to improve the efficiency of court claims handling, which it sees as overly bureaucratic and too dependent on paper documents. It proposes digitising the entire claims process. Employment Tribunals are further down the digital road than other courts as most claims are already made online, but once received at Tribunal offices claims still need to be printed off and are then processed on paper. The Government thinks it would save time and money to process the whole claim online.

Some claims might even be suitable for online decision-making and this is one of the matters on which the Government is seeking views. Some lawyers have suggested that, while simple wages claims might be suitable for online determination, complex discrimination claims would not. The Government has agreed but is interested in views on the factors that might make particular claims suitable for digital consideration.

The Government is aware that some people will have difficulty accessing a digital system or would need support to do so. It has already sought views on potential solutions to this issue in an earlier consultation on the wider justice system, but now wishes to understand if there are any particular factors that should be considered in the context of ETs. 

The Government intends to enable the delegation of some judicial functions to ET caseworkers. For example, caseworkers might be allowed to determine whether a time limit had been met, whether a party should be allowed to amend a document or whether proceedings can be stayed. A party unhappy with a caseworker’s decision would be able to ask for the matter to be reconsidered by an ET judge.

It is proposed that a judge will have to agree before any delegation could take place, but legislative changes would be required to enable delegation to happen. The Government is therefore seeking views on the factors that should be taken into account when creating the scope to delegate judicial functions. It also wants to know whether there are any specialist skills that an ET caseworker might need, other than those required for carrying out casework in any other tribunal.  

Another matter up for consideration is the composition of the ET panel. The Government believes it is no longer appropriate for non-legal members to sit as a matter of course without reference to the needs of the particular case. It believes that non-legal members should be deployed “where circumstances require it and their expertise is relevant” and suggests this might sometimes be via online participation.

The Employment Tribunals Act 1996 (“ETA”) currently provides that a panel will consist of a judge and two non-legal members but that certain cases (breach of contract, holiday and redundancy pay and unfair dismissal) may be heard by a judge sitting alone. In each of those cases the judge retains discretion to convene a full panel. Under the ETA, that list of exceptions may be amended by the Secretary of State for Business, Energy and Industrial Strategy (“BEIS”) and the Lord Chancellor acting together. The Government proposes to bring the ET system in line with the rest of the tribunal system and enable decisions on panel composition to be made by the Senior President of Tribunals. Views are sought as to whether there are issues specific to ETs that need to be considered when changing the law on panel composition. 

The Government also considers that the powers in the ETA to set processes should be updated and brought into line with the rest of the tribunal system. Under this approach, ETs would retain separate rules from the unified system but the power to make rules would be transferred to the independent Tribunal Procedure Committee (“TPC”) rather than a minister in BEIS or the Lord Chancellor, as is currently the case. Membership of the TPC would be amended to reflect its wider remit by appointing appropriate representatives such as an employment judge and a suitably experienced practitioner in the field. The Government asks what criteria should be used to determine the appointment of the new employment practitioner member of the TPC.

The Government also requests input on whether the specific features of the ET system can be appropriately recognised in the reformed justice system. And finally, views are requested on the impact of the proposed reforms on small businesses and equalities.

The Government is still reviewing the impact of the introduction of ET fees and there is no further information in the new consultation on how that review is proceeding. The deadline for responses to the ET consultation is 20 January 2017.

Ill health and disability consultation

For several years, there have been fewer than 50% of disabled people in employment, compared with 80% of non-disabled people, according to the Government’s new green paper. The consultation seeks views on why disabled people and those with certain health conditions may struggle to find or keep a job, and help in understanding the range of circumstances they face.

Opinions are sought from a range of respondents including employers of all sizes, individuals with disabilities or health conditions, healthcare professionals, families, friends, teachers and carers, local leaders and voluntary and community organisations. The deadline for responses to the green paper is 17 February 2017.

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