Empty justice: the big hole at the heart of the ET system

On Monday, the Law Society published its long-awaited discussion document on reform of the ET system, Making employment tribunals work for all. It’s a considered and thought-provoking document that focusses on the idea, previously floated by former ET President David Latham, of creating a single jurisdiction – an Employment and Equality Court, perhaps – within which “all employment law cases could be heard”.

The document suggests that within this single tribunal or court there could be four levels, to which “cases could be allotted according to their value and complexity, with proportionate rules and procedures applying to the different levels of claims”. Under this model, Levels 1 and 2 would provide “an informal, swifter and therefore less expensive way to resolve disputes that involve simple facts and no new issues of law”, such as claims for unpaid wages. Levels 3 and 4 would be “more formal and legalistic”, with Level 3 operating in a similar way to the current ET system, and Level 4 operating “like a civil court for those cases that are currently heard in the courts”.

It’s hard to disagree with the document’s starting point, namely that “employment-related claims need to be dealt with flexibly, depending on their complexity and the financial stakes. It is not acceptable that individuals should be discouraged from bringing legitimate claims or from opposing them because of the cost or complexity associated with the process”. And I’ve long been an advocate of using a document-based and – where appropriate – inquisitorial decision-making process to determine the most straightforward (and usually low-value) claims quickly and at low cost. So I’m attracted to the idea that the document’s proposed Levels 1 and 2 might “ensure that all workers, including those on low pay, could enforce their statutory rights”. As the discussion document notes, “since the introduction of ET fees [in July 2013] many of these types of cases are no longer pursued in the ET, because the claimant could not afford the financial risk”. Indeed.

However, leaving aside the fact that in 2013 the Coalition government went as far as introducing an enabling power to create a “rapid resolution” process for straightforward ET cases (s11 of the ERR Act 2013), but gave up in the face of legalistic objections from employment law practitioners and the TUC, it’s disappointing that the 25-page document devotes just three short sentences to the long-standing and systemic problem of non-payment of ET awards. Because, from a public policy perspective, there would be little point in re-opening the ET system to thousands of low-paid claimants only for a large proportion of them to end up – however “quickly” and at minimal cost to the taxpayer – with an ‘award’ that’s not worth the paper it’s printed on, because the employer will simply fail to pay up.

By coincidence, on Monday the Herald in Scotland reported the case of Christopher Hillis, who has just ‘won’ an ET award of just over £15,000 against Glasgow restaurant Cail Bruich, in relation to his summary dismissal by (abusive) text in September last year, just days after complaining to the restaurant’s joint owner/chef about being paid (well) below the national minimum wage. Cail Bruich is no rogue chippie – it’s twice won an award as Scotland’s best restaurant – but nevertheless Mr Hillis stands to receive not a penny of his award, as the restaurant’s owners have dissolved the company that (technically) employed him, even though the restaurant where he worked continues to trade (heaven knows how – it’s fancy “modern style” dishes look disgusting to me).

crap food

During the later years of the Coalition government, then BIS minister Jo Swinson did try to do something about the systemic non-payment of awards, but by then it was already too late. As I’ve noted previously on this blog, while Ms Swinson deserves “credit for trying to close the stable door, most of the horses have been galloping around the fields since July 2013, and will continue to do so until such time as the fees regime is substantially reformed”.

Which brings us back to the other great problem with the current ET system: fees. Again, on this issue the Law Society’s discussion document is strangely muted, rightly condemning the impact of fees on access to justice but failing to set out any detailed alternative to outright abolition. But that’s for another blog post.

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