Sunday 8th July 2012 at 6:00am
Following on from my recent post on article 6 (i.e. fair trial rights) I thought it might be useful to start asking the question of whether the Coalition’s plans to alter how the Tribunal works are also compliant with the Convention; or, to put it another way, whether they are lawful?
First of all, I need to remind readers of what the government is proposing to do. The “reforms” can be grouped according to when they have taken effect, or will take effect.
1) Various changes have already taken effect as of April 2012, including:
a) The extension of the unfair dismissal qualifying service requirement to new employees taken on after 6 April 2012, to two years
b) A change to the composition of Employment Tribunals, so that ordinary unfair dismissal claims are heard by a single judge (three-member panels being retained for discrimination claims)
c) An increase in the amount of costs that can be summarily assessed by an Employment Judge to £20,000
d) An increase in the maximum deposit order to £1,000
2) Various further changes are set out in Employment and Regulatory Reform Bill:
e) The renaming of comprise agreements as settlement agreements
f) A requirement to contact ACAS and obtain their confirmation that pre-claim conciliation has been declined or was unsuccessful before filing a claim
g) Legal officers will be able to determine certain employment tribunal claims
h) A cap on unfair dismissal awards
i) Fines to be paid to the government where an individual’s rights have been breached
3) Other changes are likely to enter the Bill at committee stage
j) Protected conversations once an employee has been identified for possible dismissal
k) The ending of the statutory questionnaire process in discrimination claims
4) Other changes will be introduced, albeit in further legislation
l) Issuing and hearing fees for Tribunal claims
Working through these in sequence:
The extension of the service requirement in unfair dismissal is far in excess of the standard “probationary period” in industry, and will have a disparate impact on women. In (Secretary of State For Employment, Ex Parte Seymour Smith and Another, R v  UKHL 12) the House of Lords, on having referred the question to the European Court of Justice for a preliminary ruling, held that while the two year qualification period discriminated against women it was proportionate to the legitimate aim of protecting employers from an unnecessary burden (Lord Nicholls directing himself, “National courts, acting with hindsight, are not to impose an impracticable burden on governments which are proceeding in good faith”).. Over the following 20 years, much has moved on, not least a) the ability of the government to make much more accurate assessments of the impact of legislation, and by) the stringency of proportionality assessment. It would be interesting to see whether the measure would still survive a proportionality assessment. However the problem of the rule is its effect on the substantial law, it does not infringe article 6 fair trial principles as such.
The replacement of panelists by judges is unlikely to be found to reduce the fairness of hearings (in essence, the test is of independence and impartiality. It would be hard to see the basis of an argument that fairness could only be maintained by retaining specialist wing members appointed on the basis of their knowledge of industry – i.e. their knowledge and partiality).
The increase in costs awards is again unlikely to merit any sort of challenge as in practice all that has been increased is the amount that can be ordered by summary assessment (the option has always been to remit a case where costs are likely to be higher than £10,000 – now £20,000 – for assessment in the county court)
I have not been able to find any ECHR costs on deposit orders per se, but the ECHR has approved rules imposing interim penalties on dilatory or abusive litigants (P v France, application no 10412/82). A difficulty in challenging deposit orders would presumably be that the deposit only lasts until a full merits hearing, i.e. is subject, relatively quickly, to review by a second, “full jurisdiction” decision maker.
The change of name of compromise agreements is minor.
The future of ACAS’ involvement in Tribunal cases is provided for by clauses 7-9 of the Enterprise and Regulatory Reform Bill. Clause 7 provides that:
(1) Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must send to ACAS prescribed information, in the prescribed manner, about that matter…
(2) On receiving the prescribed information in the prescribed manner, ACAS shall send a copy of it to a conciliation officer.
(3) The conciliation officer shall, during the prescribed period, endeavour to promote a settlement between the persons who would be parties to the proceedings.
(a) during the prescribed period the conciliation officer concludes that a settlement is not possible, or (b) the prescribed period expires without a settlement having been reached, the conciliation officer shall issue a certificate to that effect, in the prescribed manner, to the prospective claimant…
In a schedule 2 to the Bill, it is said that the time starting on “the day” when a claimant sends the information to ACAS and ending on “the day” when the ACAS officer issues the certificate, is deemed not to count for the limitation periods.
As I have written previously, this is a hopelessly complex procedure, which from everyone’s perspective – Claimants, Respondents, and Judges – in justifiable. It is not practical, it has not been thought through, and it will add immensely to the stress and costs of litigation. Quite where it fits in with article 6, is not altogether clear, but the legislation is so bad that if not on article 6 grounds it ought to be capable of challenge just on ordinary public law grounds.
This enhanced role for ACAS is perhaps comparable to limitation periods, in that it makes a necessity out of a relatively arbitrary requirement, with the implied purpose of restricting the numbers of people who can bring cases.
Limitation periods are not per se incompatible with article 6, and the ECHR has described them as “a common feature of the domestic legal systems of the contracting states” (Stubbings v UK (1996) 23 EHRR 109). But very restrictive limitation periods: such as a three day limitation period (Perez de Rada Cavanilles v Spain (1988) 29 EHRR 109), or a limitation period which expired before knowledge of the claim (De Gouffre de la Pradelle v France (1992) series A, no. 253) have been found to be incompatible with article 6.
Clause 10 of the same Bill provides for decisions to be made by legal officers:
A person appointed as a legal officer in accordance with regulations under section 1(1) may determine proceedings in respect of which an employment tribunal has jurisdiction, or make a decision falling to be made in the course of such proceedings, if—
(a) the proceedings are of a description specified in an order under this subsection made by the Secretary of State and the Lord Chancellor acting jointly, and
(b) all the parties to the proceedings consent in writing; and any determination or decision made under this subsection shall be treated as made by an employment tribunal.
If a decision by a legal officer deprived a litigant of their right to an impartial tribunal, this would be a (prime facie) breach of article 6, but it looks like the extent of the breach will be limited as a) the procedure only applies where the litigant has had genuine access to a Tribunal judge and has chosen to place themselves before a legal officer instead, and b) appeal rights are maintained.
The cap on unfair dismissal awards will operate by giving the Secretary of State powers to limit the compensatory award for unfair dismissal to between one and three years’ median earnings (currently c£26,000) and this would potentially be capable of challenge on many grounds (for example, is the justification sufficient to get over what would appear to be indirect age discrimination?), but the problem is the infringement of a substantive right, rather than article 6 fairness.
The detail of the fines to be paid to the government are in Clause 13 of the Bill:
Where an employment tribunal determining a claim involving an employer and a worker—
(a) concludes that the employer has breached any of the worker’s rights to which the claim relates, and
(b) is of the opinion that the breach has one or more aggravating features, the tribunal may order the employer to pay a penalty [of £100 to £5,000] to the Secretary of State (whether or not it also makes a financial award against the employer on the claim).
The principle offends natural justice (why should a claimant have to bring a claim so that a third party – government – should have the benefit of a fine?), but is not obviously in breach of article 6 principles of fair procedure.
Protected conversations will operate by excluding material from the Tribunal’s assessment of the fairness of a dismissal,
The present Clause 111A of the Enterprise and Regulatory Reform Bill provides that:
(1) In determining any matter arising on a complaint under section 111 [an unfair dismissal claim], an employment tribunal may not take account of any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee.
This is then subject to various exclusions of which the most important are:
(2) Subsection (1) does not apply where, according to the complainant’s case, the circumstances are such that a provision (whenever made) contained in, or made under, this or any other Act requires the complainant to be regarded for the purposes of this Part as unfairly dismissed.
(3) In relation to anything said or done which in the tribunal’s opinion was improper, or was connected with improper behaviour, subsection (1) applies only to the extent that the tribunal considers just.
It may well be that the improver behaviour test is too narrow, in that it would prevent Tribunals being able to take account of conduct such as – admissions made during protected conversations as to the true reason for dismissal – or protected conversations taking place unreasonably but not improperly early. Whether it would offend article 6 fair trial principles however is moot, as what appears to be at stake is the substantive fairness of the dismissal rather than fair trial as such.
As for issuing and hearing fees for Tribunal claims, some of the detail remains hazy. The government is consulting on a range of options, which would be likely to result in issuing and hearing fees of a total of between c£400 (for wages claims) and c£1500 (for discrimination claims), to be paid by claimants only, with fee waivers probably based on the county court schemes, but important decisions remain subject to consultation, including whether fees would be payable in one tranche or two, and whether there should be a partial fee-waiver where claimants agreed to cap their potential award in advance and paid a lower fee accordingly.
In Kreuz v Poland  11 BHRC 456, it was said that the requirement to pay court fees can give rise to a denial of access. The amount of fees must be assessed in the light of the particular circumstances of the case, including the applicant’s ability to pay them and the phase of the proceedings at which they are imposed.
The scheme has all sorts of imbalances: for example, if there is a fee waiver scheme for people who are unemployed, then that will have the bizarre cibsequence that almost the only people who would be eligible for fees would claimants in discrimination claims (the reason is essentially that people in jobs don’t bring wages claims, for fear of losing their job, and people who bring unfair dismissal claims have, by definition, been sacked). The fees value Tribunal claims as being of the same significance, complexity and cost as High Court claims, but for other governmental puroposes Tribunals are in theory an easily accessible, informal system (this is why you can’t legal aid for employment cases, because they are supposed to be a simple court in which claimants can represent themselves). And it would be unjust if low-paid working discrimination claimants could not afford to have their cases heard.
Here in particular, there may well be grounds for an article 6 challenge, subject to the detail of the final scheme.
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Friday 29th June 2012 at 6:00am
Article 6(1) ECHR provides that
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
An ordinary employment dispute comes within the definition of “civil rights” in article 6 irrespective of whether the employer is a private (Buchholz v the Federal Republic of Germany  ECHR 2) or public body (Philis v Greece  ECHR 34).
Article 6 protects the right to a “fair and public hearing”. This comprises rights to access to court, equality of arms, and a reasoned judgment.
The right of access to court must not only exist, it must also be effective. Where a prisoner was refused permission to contact his solicitor with a view to bringing a civil action for libel against a prison officer the refusal was a violation of Article 6 (Golder v the United Kingdom (1979-80) 1 EHRR 524, para 35). Where two protesters were denied access to legal aid to defend a complex libel case, this refusal violated their Article 6 rights (Steel and Morris v the United Kingdom  ECHR 103)
In most cases, the right to a fair and public hearing includes the right to an actual hearing (Fischer v Austria  ECHR 11 para 44), although not where the parties have agreed to proceed “on the papers”.
Decisions which determine civil rights may be made by the administrative authorities, provided that there is then access to an independent and impartial tribunal which exercises “full jurisdiction” (Bryan v United Kingdom (1995) 21 EHRR 342). What amounts to “full jurisdiction” varies according to the nature of the decision being made., the subject matter of the decision and the quality of the initial decision.
The right to a fair hearing comprises a right of appeal (Delcourt v Belgium  ECHR 1, para 25)
Article 6 protects the principle of equality of arms, a fair balance must be struck between the parties (De Haes and Gijsels v Belgium  ECHR 7).
Article 6 comprises a right to a reasoned judgment. If a submission is fundamental to the outcome of the case the court must then specifically deal with it in its judgment (Van de Hurk v the Netherlands  ECHR 14, para 61).
Article 6 protects the right to a hearing “within a reasonable time”. Whether that right has been unjustifiably impaired will depend on the complexity of the case, the conduct of the applicant, the conduct of the judicial and administrative authorities of the State, and what is at stake for the applicant (Buchholz).
Article 6 protects the right to a hearing by an “independent and impartial tribunal”. Where the judge who presided over a planning appeal had also participated in the parliamentary debate on the adopting of the development scheme, article 6 was violated (McGonnell v the United Kingdom  ECHR 62).
Domestic article 6 cases
The majority of recent domestic employment cases on article 6 have concerned whether an employee is entitled to a fair and impartial hearing in circumstances where a dismissal threatens their long-term ability to practice their profession. After some to-ing and fro-ing, the final position appears to be that where an employee is threatened simply with dismissal, the employer is not determining the employee’s civil rights and article 6 fair hearing rights are not engaged (Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust  EWCA Civ 641)
Other domestic cases on article disclose the following principles: a hearing where the tribunal had decided the case properly based on the evidence and correct application of the law will ordinarily be enough to satisfy the requirements of article 6 (Jackson v Walsall Metropolitan Borough Council EAT  UKEAT 1247/10]).
The more serious an allegation or charge, the more astute the courts should be to ensure that the trial process is a fair one (Bonhoeffer v General Medical Council  EWHC 1585).
A 7-month delay by an EAT in reaching its decision is not enough to deprive a litigant the substance of their right to a fair trial (British Gypsum Ltd v Thompson  UKEAT 0115/11)
In national security proceedings, even the “gist” of closed material need not necessarily be disclosed in order to ensure a fair trial (Home Office v Tariq  ICR 938, SC)
In Subner v United Kingdom the UK government recently conceded (i.e. the case was settled) that a Judicial Review (i.e. a judicial determination limited to a review function, with no capacity to determine the facts) is not a “full jurisdiction” hearing, i.e. is not adequate to hear complaints about the substance of professional regulatory panels. In future, appeals from these bodies to the High Court will be re-hearings.
Finally, a very recent decision of Elias LJ (albeit obiter) determined that an unfair dismissal hearing is in principle article 6-complaint, even where the Tribunal is required to follow the range of reasonable responses test:
“[Such a hearing] is not, therefore, a full re-hearing although it is more intrusive than classic judicial review. Given the existence of fair and detailed procedural safeguards at the initial level, coupled with a right to appeal, I consider that where available (and it may not be in all cases) a claim for unfair dismissal would suffice to constitute full jurisdiction complying with Article 6, notwithstanding that it does not allow findings of primary fact to be reviewed (Mattu, supra, at para 121).”
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