Monday 15 July 2013

When is a Compromise Agreement not a Compromise Agreement?


The answer to the above poser is that from 29th July when, as a result of the implementation of Section 23 of the Enterprise & Regulatory Reform Act 2013, both compromise agreements and compromise contracts will be renamed as “Settlement Agreements”.  How about that for an incisive change in employment legislation!   From the same date Section 14 of the Act will also be implemented which prevents pre-termination negotiations from being referred to in evidence in unfair dismissal claims. 

This latter provision is “interesting” in that this new exclusion is only limited to unfair dismissal and not cases where there is automatic unfair dismissal, discrimination or breach of contract.  The suggestion that particularly litigants in person will understand the distinction, or that the Tribunal will be able to isolate the separate claims, is perhaps optimistic. 

New regulations have also been brought forward which will take effect from 29th July and which will significantly increase interest on discrimination compensation raising the rate from 0.5% to 8%.  Under a separate order, interest will also now become payable on a Tribunal award unless full payment is made within 14 days after the decision.

Friday 12 July 2013

Village Green



The popular Village Green event will be taking place in Chalkwell Park this Saturday. As in previous years there has been a “Big Charge” which encourages local residents to spend 30 minutes on a bike generating power which will then be used during the event. I did my time on Wednesday and here is a photo to prove it! 


The Increasing Cost of Seeking Justice


As the Government continues to impose its austerity measures on the country, there is no more obvious effect than in the administration of justice where parties are being forced to endure Court closures, streamlining of back office tasks making the court staff less accessible, the introduction of fees in Employment Tribunals and the ever increasing levels of fees across the County Court system.   

Unfortunately there is no evidence that this increased fee level is being invested into the system to improve the quality and speed of justice delivery.  In addition, as Courts and Tribunals seek to recover ever greater fee levels from users, the time has come for them to acknowledge that they are a service industry and must be receptive to the needs and demands of their users.  If not, then the opportunity must surely exist for alternative dispute resolution systems which can guarantee a service which is provided at a fair cost but with a flexibility that many of our Courts and Tribunals fail to offer.   

These are interesting times for the legal profession but perhaps the time has come for there to be a greater challenge made of our Civil Court and Tribunal Judges and support staff.

Litigants in Person – Can the Court System Rise to the Challenge?


It is an inevitable effect of many of the changes currently being imposed on the Court and Tribunal system that there will continue to be a significant rise in the number of litigants in person trying to navigate their way through sometimes complicated actions without legal assistance.  The significant reduction in the availability of legal aid, increase in the County Court small claims limit and change to the rules on the recoverability of costs are all examples of measures which are forcing many litigants to go it alone.   

The challenge is whether, at a time when the austerity measures are driving “efficiencies” and reductions in staffing the Court and Tribunal Service, the system can cope with the inevitable increase in workload that this will create.

A judicial working group on litigants in person has recently reported making various recommendations to include additional training and guidance for Judges, a new Civil Procedure rule to balance access to justice with consistency, rules to encourage Judges to deal more proactively with vexatious claimants and even the suggestion that the Courts should move more from their historical adversarial approach to being more inquisitorial - which has been the case for many years across much of mainland Europe.   

These recommendations all seem sensible; however, in reality how will Courts and Tribunals ensure that litigants in person do not gain an unfair advantage over those who have instructed solicitors to act on their behalf and will resources be provided to ensure that the inevitable effect of greater involvement of litigants in person resulting in longer hearings will not impact unfavourably on Court and Tribunal waiting lists.  

 The Court rules apply to all, whether represented or not, and it is clearly unfair if litigants in person are allowed a level of flexibility in complying with Court rules and avoiding sanctions which are then applied stringently to their represented opponents!

Wednesday 10 July 2013

Employment Tribunals – New Rules of Procedure (Part II)


In addition to the contentious proposals to introduce fees in Employment Tribunals, the new rules of procedure make many other changes.  These include increased case management powers for Employment Judges and provisions to sift cases following the receipt of a response to encourage Employment Judges to give early consideration as to whether, on the basis of the paperwork, either the claim or response should be struck out in full or in part or, if the case should proceed, to determine appropriate case management directions.   

These proposals generally seem sensible and reflect the good practice which has already been followed in some Tribunals.  The question is whether in those Tribunals where Tribunals have not been able to process claims swiftly and effectively, they will have the resource to deliver these new procedures as, if not, it is difficult to see how the system will become more efficient and user friendly.   

For more information with regard to the changes contact our employment team on employment@tolhurstfisher.com.

Monday 8 July 2013

Employment Tribunals – New Rules of Procedure (Part I)


New Employment Tribunal rules are due to be implemented from 29th July 2013.  The most controversial change is that for the first time a fee will be payable when a claim is lodged and, assuming that the case remains contested, there will also be a hearing fee.  There are provisions for these fees to be waived if the claimant’s financial position merits it.   

There is no doubt that this will provide a significant challenge for many potential claimants, who are already coping with an unexpected loss of employment and the inevitable financial pressures this creates.  Whether the motivation for the change is to deter employees from making claims, or to subsidize the Tribunal Service in these austere times, it does raise the issue of what level of service claimants can expect from Tribunals in return for these fees.   
For more information contact nholdcroft@tolhurstfisher.com or mrobinson@tolhurstfisher.com.