As an undergraduate law student, one of the most useful pieces of guidance that I received came from a lecturer who facilitated a sequence of seminars on the topic of “rights”. In the context of looking at different political and legal regimes and considering such issues as the US constitution and the desirability of a British bill of rights he explained simply but compellingly that “a right is not a right unless it has a remedy”. By “remedy” he meant viable and effective remedy as opposed to a notional remedy. In looking at the UK in particular he addressed issues such as cost, delay and ease of access to the courts. He also rather scathingly addressed the accountability or rather the lack of it of bureaucratic institutions such as governmental departments that make legal or quasi-legal decisions on a daily basis.
With all of this in mind, I recently noted that in April 2020, the Law Commission, (the Commission) the independent body that recommends often quite sweeping changes to UK law and legal institutions, published a report in respect of the Employment Tribunal (ET), the judicial body that deals with the vast majority of employment disputes including unfair dismissal, redundancy and discrimination claims. In so doing the Commission proposed what some would see as a number of radical recommendations which included significantly raising permissible compensation levels and increasing the scope of the range of cases that could be taken to tribunal. The report looks at procedural as well as substantive legal changes and addresses matters as diverse as equal pay, extending the scope of existing rights of action, increasing the currently awardable levels of compensation and the status of self-employed persons.
In many respects this is a high-quality document reflective of the standards of excellence that the Commission has delivered since its inception. It is premised on an ostensibly thorough analysis of an initial, extensive consultation with a wide variety of organisations and interested parties. It is quite apparent from the report that the various views expressed have been listened to, analysed and in many instances taken on board. As well as being well written, this report is neutral in balance and tone and amply demonstrates that different points of view and a plethora of very complex issues have been considered. It remains to be seen whether the UK Government, which is not bound to do so, takes on board some or all of the recommendations and enacts legislation or alternatively as it can be equally do, rejects this report out of hand.
One particular aspect of the report that caught my eye has also been highlighted by the Law Society, the governing body of solicitors in England and Wales, namely that in the context of harassment and discrimination claims, the time limits for bringing cases should be extended from the present very short three-month limit to six months. In this context, the impact of the Covid 19 emergency on tribunals and the difficulties faced by people seeking to bring claims is very correctly highlighted.
However, as persuasive and compelling as the Commission’s recommendations might appear, they have not been universally acclaimed and I suggest that one or two fundamental issues have been overlooked. The point has been made that if these recommendations are adopted, more and more people will be making applications to the already badly overstretched ET, effectively giving “rights” but without providing the practical means for people and institutions to pursue their cases and receive determinations in a reasonable amount of time.
In practice, because of a lack of resourcing and the sheer number of, in many instances, quite justified claims that have been brought in recent years, even before the current health emergency, the ET was struggling and was very seriously behind with its work. So called “routine” or “straightforward” claims that a decade ago would have been dealt with in a short space of time are now taking a minimum of nine months to determine. The Covid emergency is being blamed but in reality, this emergency has only served to highlight underlying Employment Tribunal related problems that in some respects are years, possibly in some cases even decades old.
The ET’s processes and procedures are not as simple as they were when unfair dismissal legislation was first enacted in the 1970s. Currently, those who lack legal representation find it very difficult to cope with the sheer complexity of the attendant processes and legalities whilst claimants and respondents who instruct lawyers find that in practice, they are frequently presented with very high five figure legal bills, even where they are ultimately unsuccessful.
Quite understandably both the employers and employees caught up in all of this resent the money they may have to pay out and the sheer amounts of time they have to expend. The longer tribunal proceedings drag on the more impatient they become. Lives are put on hold and businesses suffer because of time devoted to the proceedings at the expense of income generation and day to day management. Objectivity is lost. The opportunity for fair and just resolution recedes and may even be lost altogether.
The Law Society notes that even before Covid there was a backlog of 40,000 cases in the ET. Given the current near dormant state of much of the court and tribunal systems in the UK I strongly suspect that the current very lengthy delays of up to two years for a final tribunal hearing will increase.
The only way that this very severe crisis will ever be addressed is for the UK government and other bodies to recognise and accept that mediation, particularly early mediation, before the word “tribunal” is even mentioned, will help to drastically reduce the unacceptably high number of ET cases to a manageable proportion. Early resolution of claims for unfair dismissal means swift and, in most cases, fair resolution at much more reasonable cost. Early resolution of disputes in the workplace means that the need for employers to invoke disciplinary and dismissal related procedures will reduce with attendant savings of time and money. Mediation is generally a constructive, learning process and the “lessons learned” from individual mediations can result in better workplace practices and more thriving workplaces.
Principal Director of ASM PLUS, civil/commercial, workplace, employment, family and educational mediator and trainer with a judicial/legal background. He has knowledge and expertise in dispute resolution in a wide range of areas and disciplines and mediates online.