Clause 10 of the Enterprise and Regulatory Reform Bill would amend Section 4 of the Employment Tribunal Act (ETA) 1996 so that in circumstances where the parties agree, certain employment tribunal proceedings (as yet undefined) and any decisions required to be made during those proceedings can be determined by legal officers rather than by an employment tribunal judge.
The Department’s response to the 2011 consultation document gives an idea of the types of claim that may be involved:
“In response to comments made during the consultation process, we will consider whether and how we can introduce a scheme to provide quicker, cheaper, determinations in low value, straightforward claims (such as holiday pay) as an alternative to the current employment tribunal process. Any such scheme could involve non-judicial determination (by legally qualified individuals or otherwise) based only on papers (i.e. no oral hearing). Potential advantages may include claims being dealt with more quickly than the current system permits and, because of the potential for parties and witnesses avoiding having to attend a hearing, at less cost”.
The government does not appear to have ever considered certain minimum questions which would be needed to give this proposal teeth, such as – would there be an appeal from a decision of a legal officer? (perhaps to an ordinary Employment Judge), or would hearings before legal officers result in the waiver of the hearing or issuing fee? Would lawyers be allowed to attend such hearings? Could there be any guarantee that hearings before legal officers could be listed more quickly, perhaps ever much more quickly than ordinary Tribunal claims?
Nor has the government thought through how hearings before legal officers might interact with the new emphasis on Acas. For while there is a considerable amount of research now to the effect that Acas officers are distrusted by claimants, there has been no real analysis of why that is. My own view is that the problem with Acas is that the officers never meet the parties. There are other areas of law where independent professionals have a very decent rate of settling complex and emotional disputes (such as family law, where a decent Cafcass officer can save both parties months of unnecessary litigation). The reason why Cafcass “works” (albeit not in every case) is that both parties meet the Cafcass officer, spend time with her, and get a real opportunity to develop an initial bond.
Legal officers, in other words, could be used to reduce the number of hearings considerably – but only if they were properly resourced.
The sadness here is that you can see the potential for a decent reform, but one which the Coalition has not developed because it has no real sympathy for the situation that parties find themselves in when having to bring Tribunal claims, and no real message other than to reduce the number of claims as rapidly as it can.