Employment Tribunal Claims Down

Latest figures reveal that the number of new employment claims being started has very significantly reduced.  Now some will argue that this is a good thing and that the pendulum had swung too much in favour of the employee resulting in claims being pursued in almost any circumstances and leaving employers at risk of at worst significant awards and at best substantial costs to defend ill conceived claims. 

The argument was that the risk of these claims was deterring employers from increasing their workforce and was depressing the job market.  There may be some merit in this view; however, there is now a growing feeling that things have swung back too far the other way. The extension of time before the right to a standard unfair dismissal claim can be pursued has been increased from one year to two. 

In addition we have the ponderously slow speed at which some Tribunal offices progress claims which can deter even the most enthusiastic claimant and more importantly the introduction of significant Tribunal fees which make many claims simply beyond the financial reach of many. 

Tribunals were originally intended to provide a low cost, user friendly, jargon free structure to administer fast and understandable justice without the pomp and procedure which sometimes has accompanied the more formal court process.  This is still the case in some areas of their work but due to underfunding and overcharging, Employment Tribunals appear to have lost their way.

If anything is an indictment of the current position it is that many employees with employment claims are now choosing to pursue them through the County Court small claim procedure rather than in the Tribunal because the fees are considerably cheaper.  It would appear that the relationship between Courts and Tribunals has reversed and if the Tribunal system can no longer deliver the benefits which it was set up to achieve, then something has gone very seriously wrong and needs to be addressed.

Local serach delays

As my formal connection with Southend Borough Council has now ended I feel able to criticise the authority’s current performance on local searches. A combination of a delay of some weeks to return results and a refusal to return by e mail suggests a slight “luddite” tendency and compares unfavourably with Castle Point next door which returns searches within a few days and has come to grips with electronic communication! So come on SBC pull your socks up. There are enough aggravations in the Conveyancing process as it is without this further delay.

Flexible working – the growing challenge for employers

One of the provisions of The Children and Families Act 2014 will potentially have a significant effect on employers as it extends the right to request flexible working to all employees with at least 26 weeks' continuous service.

The new rules will come into force at the end of this month (June 2014) and will impose on employers an obligation to deal with requests in a reasonable manner and within a three-month decision period. Flexible working can pose massive operational challenges for employers. This further extension of access to this right will be unwelcome for many but as previously it does not mean that such requests cannot be refused.

What it does mean is that it is essential that employers have in place a process to ensure that any requests received are dealt with efficiently and within the prescribed time limit, and that proper and justifiable reasons are given for any refusal. As with so much in employment law employers who follow sensible and established procedures significantly reduce their risks of successful claims being pursued.

Mediation – well maybe but not always

Now don’t get me wrong I am a great supporter of the view that disputes should be resolved as quickly, economically and fairly as possible but am I alone in starting to become distinctly uneasy about this growing infatuation with mediation.

Now in many cases, particularly where the claims are potentially uneconomic to pursue and the outcome uncertain, a well conducted mediation is the ideal outcome. However there are also cases where the position of one party is strong and the problem with mediation is that there is an expectation of compromise and concession which towards the end of a long mediation can become overbearing.

If a party has a very strong claim and does not want to compromise then it should be there right to go to court if they wish and pressure and potential costs penalties for not mediating are undermining that basic right. After all if a party pursues a claim unreasonably there are plenty of opportunities to increase their cost risk using the existing court rules.

So let’s encourage effective mediation with appropriate cases but then ensure that the court system works quickly to ensure that cases which are not suited to mediation can be determine without delay and as cost effectively as possible.

In the meantime for cases that are well suited to mediation I would recommend my colleague Susan Blake who is establishing a strong reputation as an effective and approachable mediator.

Time limit compliance – a step in the right direction

I was pleased to note that in the recent case of Groarke v Fontaine the High Court has shown some common sense with regard to time limits and the need to show some flexibility in the interests of fairness, balance and the proper administration of justice.

An appeal has been allowed against a refusal of a District Judge to allow an amendment. The reason for the original decision appears to have been to punish one of the parties for earlier breaches of orders and directions for which no sanctions were imposed.

Quite correctly in my view the High Court Judge adopted a more balanced stance. It hopefully represents what will be a continuing trend to undermine the hard line decision in Mitchell v News Group Newspapers which attempts to ensure that any failure to comply with prescribed time limits results in Armageddon for the relevant party.

Ignoring the irony of the Court imposing this level of sanction on the parties at a time when the administration of the system appears to have fallen into chaos it also fails to acknowledge that this profit generating “service” should be receptive to the wishes of the parties and to allow sufficient flexibility to ensure that a fair and just outcome is of paramount concern.

Small claims without hearings - beware!

One of the problems that has resulted from the removal of civil legal aid and the increase in the value of civil small claims where legal costs are irrecoverable is that the number of litigants in person has grown massively. 

Some people faced with the challenge of preparing and presenting their case without legal support do remarkably well however unsurprisingly many others struggle to cope with often complicated processes and points of law. In the meantime hearings get longer and the system struggles to cope. 

One approach increasingly apparent in Southend County Court is a direction for the matter to be dealt with on the basis of written submissions and documents rather than oral evidence. I do not criticise the courts for trying to streamline the system and increase the speed of justice but this does raise yet another risk to the quality of justice in this current cost cutting era. 

I have recently been consulted by a party who was directed that his case would be dealt with in this way and had no understanding that he was fully entitled to object if he wished to do so. Evidence, to include expert evidence, was then lodged and a decision was then issued. It rejected his claim on the basis that the 2 experts disagreed and as it was for the Claimant to prove his case the claim was dismissed. 

In my opinion the decision was a poor one. It is inevitable in a contested case where both sides rely on expert evidence that there will be disagreement but surely that does not mean that as a result the Claimant should lose. If so it makes a defence strategy on most claims reasonable straightforward! Of more concern the Judge gave no indication that he/she preferred the evidence of the Defendant expert. It was simply that there was disagreement. 

The client tried to seek a hearing but this was rejected as he has “consented” to the matter being dealt with on paper. He didn’t want the cost and further aggravation of an appeal but felt badly let down by the system and did not realise that he had the right to object. The rules have previously indicated that parties must make a clear election to avoid a personal hearing and it raises some fundamental human rights issues. 

The court has in more recent cases changed its order stressing the parties right to object to the order for a paper hearing however I would question whether the average litigant in person realises they are making this election. I also disagree that it is right to remove formal hearings and the ability to test evidence in person. If this is going to continue than I wonder if we need judges at all – I am sure that a software package could be developed enabling the parties to feed in all relevant information and receive a decision based on set criteria almost instantaneously. 

Call me old fashioned but I believe that oral hearings are a key element of our long established system and we move away from them at our peril!

The civil courts and the need for better customer service

Sometimes it is easy to forget that even ignoring the most recent hikes in court fees the Civil Court system in England & Wales operates at a profit. 

However for a publically run service which should presumably operate for the benefit of its users it appears to have lost its way. As fees go up but expenditure on staff and infrastructure goes down the quality of service to the customer continues to deteriorate. 

This ranges from annoyances like the inability to speak to local court staff by telephone but instead being directed to the dreaded local call centre and the need to make a prior appointment to attend the court office to lodge or issue urgent documents, to more underlying problems to include ever lengthening delays for hearings and the ridiculous over listing which means that cases are regularly removed from the list at short notice or even on the day because of the lack of an available judge. 

In a complex case earlier this year which was listed for 3 full days we attended on the first day to be told that due to over listing we couldn’t proceed and were eventually offered a fresh date 3 months later. It even took until lunchtime to be released. So all the court documents had been prepared, barristers instructed, witnesses called to court and experts booked all to be cancelled at massive cost to the clients. 

If only this was an isolated example but it is not. Whilst we are lectured by senior judges and legislators as to the need to reduce and control the cost of litigation there seems remarkable lack of concern or action about this hopeless waste of money which is within the control of the court service. 

It really is time for the civil court service to remember that it is supposed to be a “service” to its users and start to develop systems which reflect this. In the private sector this situation would simply not be tolerated.