Are these Employment Tribunal changes a genuine improvement, or just another way to ‘clobber the claimant’?

Damian Brooks, from our Employment department, wonders whether ‘efficiency’ is really the motivation behind forthcoming changes to Employment Tribunal procedure…

Certain aspects of Employment Tribunal procedure will change next month. They apply to claims submitted to the Employment Tribunal on or after 6 April 2012, and are as follows:

Witness statements. These are to be ‘taken as read’ unless an employment judge directs otherwise. It’s hoped that this will speed up the process by saving time spent by witnesses reading out their statements. Not really anything new as, in practice, many Tribunals were already adopting this approach. But the potential concern is that it will deprive witnesses of the opportunity to familiarise themselves with the Employment Tribunal environment. Instead, they’ll be launched into cross-examination in what is already a nerve-wracking experience for most.

Deposit orders. Employment Tribunal judges will, at any stage, be able to order claimants to pay a deposit of up to £1,000 if they believe that weak claims are being pursued. At the moment, they can only order deposits to be paid in pre-hearing reviews, with a £500 limit. The danger here is that judges will effectively be giving their views on the prospects of claims without all the facts being available. This would place financial pressures on claimants with limited funds which – in some cases – might dissuade them from bringing their claim and prevent access to justice.

Costs orders. Awarded in limited circumstances, these will increase from a maximum of £10,000 to £20,000. It is hoped that this will be applied equally where employers have not met the standards expected.

Witnesses’ expenses. The parties, their witnesses and any voluntary representatives will no longer have the option to apply to an Employment Tribunal to recover some of the travelling costs and other expenses associated with attending a hearing to give evidence. However, tribunals will be able to direct that parties bear the costs of witnesses where their attendance is required by a witness order. And that the losing party must reimburse the winning party for any such costs already paid out.

A great deal of media attention has focused on the Government’s desire to ‘cut red tape’ for employers. And it’s difficult to view the above changes without cynically wondering if they’re not mechanisms to ‘clobber the claimant’ rather than to improve procedure in the tribunals.

All too frequently, claimants are accused of wasting employers’ time and expense in bringing ‘spurious’ claims because they apparently have ‘nothing to lose’.

Anybody who has been through the stress of an Employment Tribunal hearing, and the steps leading up to it, may choose to disagree.



Current Controversies, Damian Brooks, Employment, Marcus Weatherby,
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