Employment Tribunal Essay
“Employment tribunals were established under the Industrial Training Act 1964. They were previously referred to as Industrial Tribunals, but their name was changed by s1 of the Employment Rights (Dispute Resolution) Act 1998, which took effect on 1 August 1998″(J. Nairns,2011,p. 6). Now, HM Courts & Tribunals Service which is an executive agency of the Ministry of Justice, supervise employment tribunals. Employment tribunals are constituted on the basis of region. In England and Wales, there are 11 regional offices of the Employment Tribunals(ROETs).
There is Regional Office in each region which copes with claims from applicants in that geographical area. “Any appeal from the Employment Tribunal would be heard in the EAT(Employment Appeal Tribunal), from there by the Court of Appeal and then the House of Lords”(J. Nairns,2011,p. 6). There are 9 offices of the Employment Tribunals(OETs) which are subordinating to specific ROETs where hearings occur. Nevertheless, OETs are administered by the relevant ROET under the auspices of the regional Chairman(Dennis Hunt, 2005).
The jurisdiction of employment tribunals was not completely statutory until the Employment Tribunals Extension of Jurisdiction Order 1994. “When an employee is dismissed, she may well have a claim for breach of the contract of employment as well as a claim for unfair dismissal and it seemed absurd that the two claims could not both be brought in the same court. The problem was highlighted when the Wages Act 1986 was passed and apparently provided an avenue for bringing contract claims in rocketed, indicating the need for such a mechanism”(Gwyneth Pitt, 2004, p. 14). That’s why employment tribunals created.
The main advantages of setting up employment tribunals are as the following:
1. speed, which minimizes time-wasting for both employees and employers; 2. cost, rather than loser has to pay all the costs, both parties need to pay their own costs; 3. informality, without wearing wigs, an unintimidating atmosphere created to assist individuals to represent themselves better; 4. flexibility, strict rules of precedent are not operated in tribunals which makes it be more flexibly in responding than courts; 5. specialization, tribunal members obtain expertise in areas of related cases, they can offer professional nowledge of varied industries, in this regard, ordinary courts cannot match; 6. relief of congestion in the ordinary courts, the workload of ordinary courts will be very heavy if all the cases of tribunals are transferred;
7. awareness of policy, tribunal members’ expertise illustrates members can understand the policy behind legislation in their own areas, and the wide discretionary power they possess permit them to put it into practice; 8. privacy, individuals may meet in private tribunals under some circumstances, thus their circumstances don’t have to be open to public. C. Elliott & F. Quinn, 2009) “Employment tribunals are usually composed of three members. They are chaired by a solicitor or barrister of seven years’ standing and then have two lay members, drawn from each side of industry”(Gwyneth Pitt, 2004, p. 13).
The employment judge must obtain at least seven years career of being qualified solicitor or barrister. The appointment of the employment judge is made by the Lord Chancellor. The role of employment judge is to make decisions and offer reasons of the decisions after case hearing. They also preside over the hearing and if necessary can advise lay members on points of law and procedure”(J. Nairns, 2011, p. 373). The lay members come from industry, their appointment is made by the Secretary of State for Business, Innovation and Skills. The industrial expertise of lay members can be attribution to help them work better and be more precise in the case hearing of employment tribunal. In this regard, the panel is equivalent to be an “industrial jury”. At very beginning, caseload of Employment Tribunals was very small. However, it can hear almost every employment law matter since its jurisdiction increased.
Before 1994, Employment Tribunals could only hear statutory claims while after the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994, Employment Tribunals’ role has drastically changed that they can now hear common law claims(Richard Kinder,1999). But there are some law matters of common law they cannot cope with like matters relating to moral tights and copyright, patents, designs rights, trade marks; breach of restraint of trade covenants; breach of confidence; breach of a contract terms requiring the employer to provide for the employee; personnel injury claims.
From this regard, certain employment matters still have to be tackled in the civil courts. Since judges and solicitors don’ t need to wear wigs at employment tribunals, cases needn’t to be open to public under some circumstances and employment tribunals meant to be cheap, speedy and informal, but they are not informal, actually, they are becoming increasingly legalistic. As the complexity and magnitude of employment law keeps increasing, the workload of employment tribunals increases, lawyers are now needed, thus the employment tribunals are no longer as cheap and informal as before.
As to informality, anyone going to an employment tribunal expecting a cosy chat can think again, despite the injunction in the regulation that tribunals should seek to avoid formality. In general tribunals follow a procedure which is akin to the procedure of ordinary civil courts, although if either party is unrepresented the tribunal chairperson often takes a more inquisitorial role”(Gwyneth Pitt, 2004, p. 15).
Government has launched certain reforms in the procedures of employment tribunals to reduce backlog and weed out weak cases, the reforms are as following: Pre-hearing review, tribunals can award up to ? 0,000 (this figure has increased to ? 20,000 on 6th April 2012) against losing parts, the Employment Act 2002. The Pre-hearing procedure increases costs employees need to pay, which effectively reduce backlog while may dissuade those with genuine claim from bringing a claim since it is may be too expensive for those dismissed employees. The opportunity for tribunals to raise costs to losing side, this will reduce weak cases but also dissuade employees from being brought actions. The Employment Act 2002 also increase the costs people need to pay if they want to bring a claim to employment tribunal.
For unfair dismissal cases by the Employment Rights(Dispute Resolution) Act 1998, power of running a statutory arbitration scheme which as an alternative to the employment tribunals was given by ACAS(Gillian Phillips & Karen Scott, 2005). Rather than to an Employment Tribunal hearing, parties in the cases of unfair dismissal now are possible to agree to take their cases to arbitration. “Since the introduction of SI 2004/753 parties may agree to the appointment by ACAS of an arbitrator who will decide whether the dismissal was fair or unfair.
The decision will be binding on the parties, who will not then have recourse to a tribunal hearing”(Andrew C. Bell, 2006, para. 1. 4. 3). It also reduces the workload on the employment tribunals. There are some reforms in the Employment Tribunals under the Employment Tribunals(Constitution and Rules of Procedure) Regulations 2004 (ET Regs 2004). The Employment Tribunals governed the employment tribunals from October 2004; By reg. 8 of the ET Regs 2004, the chairman of an employment tribunal must have at least seven years’ professional career as barrister or solicitor; Under reg. of ET Regs 2004, the prime objective of employment tribunals is changed to handle cases justly instead of intending to offer speed, cheap and informal means to resolve employment disputes; Tribunals get increasing emphasis on case management.
Different from the past when cases were often not identified until hearing, almost all the cases are well-prepared and issues are completely well-identified before hearings; The president possesses the right in making practice directions under the reg. 13 of ET Regs 2004(James Holland & Stuart Burnett, 2007). In certain circumstance, a chairman sitting alone can consider the matter of costs. This depends on whether the issue of the costs concerns the Originating Application, or the full hearing. In the former, the Chairman can consider the matter, whilst in the latter, it is normal for the tribunal to consider the question of costs”(Dennis Hunt, 2005, p. 8). “Rule 8 (Constitution and Rules of Procedure) Regulations 2004 introduces a system of default judgements under which a tribunal chairman may, incertain circumstances, determine a case without a hearing if he or she considers it appropriate to do so.
Such a judgement may decide liability alone, or liability and remedy(new rule8(3))”(Dennis Hunt, 2005, p. 9). The government will introduce fees in employment tribunals and employment appeal tribunal approximately from summer 2013. This action illustrates government’s hope that people can pay a fair contribution for the employment tribunals system they are using, or encourage people to choose alternatives to settle employment disputes. The fees vary depends on different circumstances. Employment tribunal can be dated back to its root of 1964’s industrial tribunal. The fundamental principle of this legal system is no fees apply.
The forthcoming fees introduction can be a development in certain degree which combines the both sides, both for the claimant employees and the respondent employers. Nevertheless, this action will bring passive impact on employees who are in junior, unskilled, middle-ranking status, especially those without large salaries. Claimant employees will be dissuaded to bring claims to employment tribunals (Personnel Today). The initial objectives of setting employment tribunals are offering speed, cheap, and informal alternatives for claimant employees to settle employment disputes with respondent employers.
The workload of employment tribunals is increasing rapidly and with bringing backload and weak cases at the same time. In 06-2005, the total workload of employment tribunals is 201,514(James Holland & Stuart Burnett,2007). In 09-2008, the total workload of employment tribunals is 266,542(Janice Nairns, 2011). From the comparison of these two data, we can directly discover that the total workload increased just a little bit within three years, and the reason of this change is reforms governments brought to employment tribunals which weed out the weak cases and also reduce the backlog of cases.
Since lawyers are now needed in employment tribunals, government will introduce fees for this legal system, and pre-hearing is needed before hearing, the employment tribunals are no longer as cheap, quick and informal before. In this regard, the employment tribunals cannot play their roles effectively as they set in their times since the reforms and changes now may dissuade people with legitimate claims from bringing action, especially those people in junior, unskilled, middle-ranking status, without large salaries.
David(2012)confirms the argument that over a thousand employees bring claims to Employment Tribunal, and the Employment Tribunal is regarded as the last line for employees as defence to unfairness in workplace. While the reforms and governments’ proposals of reforming Employment Tribunals have changed the situation and increase the burden of those claimant employees. In current situation, the employment tribunals can meet aggrieved employees in certain degrees, if the claimant employees have prepared enough expense and time for bringing actions to their legitimate cases.