Notes from the National User Group, March 2015

With my Legal Officer at the Free Representation Unit hat on I go to the meetings of the Employment Tribunal National User Group.

From time to time I’ve written up some of my notes, on the basis that there was interesting information that could be usefully distributed further. This may become unnecessary, since HMCTS is making the minutes available. But, if only to draw attention to that, I thought at least one more post might be useful.

Note, however, that these are my best notes of the meeting and shouldn’t be read as any formal statement by any of the tribunal judiciary or HMCTS (any errors are mine alone). I didn’t get a full note of some of the detail, so that will have to await minutes.

Next year’s fee paid judges / members budget

This has been reduced, to reflect the fact that HMCTS expect fewer cases. It shouldn’t be regarded as a budget cut, because it’s based on the modelling of the case-load rather than trying to reduce costs. If there are more cases than expected there will be a case for more budget and that case will be made.

HMCTS Reform Programme

MoJ is doing ongoing reform work, including within the Employment Tribunals, focused in particular on IT and premises. This will start to affect the ETs in the next 12 to 18 months. Likely to be some changes users will like and some we’ll dislike.

Premises

Bristol and Nottingham have both recently moved into combined court premises. Initial feedback seems to be positive and HMCTS feels they’ve been able to maintain the informality of the tribunal while making efficient use of the premises estate.

Huntingdon moved into the law courts a few years ago and has been the only user. Due to changes elsewhere the Crown Court will be moving back in, partially displacing the Employment Tribunal. There will therefore be sittings in Cambridge as well as Huntingdon.

Pension Loss Guidance

The guidance booklet Compensation for loss of pension rights: employment tribunals, third edition is currently marked on the Gov.uk website as withdrawn. People who follow me on twitter may have seen that I was curious about this and so I raised a question.

The present position is as follows. Following the Court of Appeal judgment in Griffin v Plymouth Hospital NHS Trust the President of Employment Tribunals has formed a working group to consider whether there should be updated guidance. Any new guidance will be the subject of consultation. It may well take the form of Presidential Guidance, rather than a new booklet.

There has been no formal withdrawal of the 3rd edition guidance. Parties must take their own view on the extent to which, in any individual case, it is appropriate to rely on that guidance in the light of Griffin v Plymouth and what, if any, other material should be presented.

Remission

MoJ continues to work on the process for applying for remission. We can expect further changes in the Autumn.

Postponement Consultation

Slightly over 30 responses have been received. Given the timescales, the response is likely to be published after the election.

News from the Employment Tribunal National User Group

I spent most of this afternoon at a meeting of the Employment Tribunal System National User Group. ETSNUG is chaired by the President of Employment Tribunals (England and Wales) and includes reports from both HMCTS and ACAS, so it’s a good opportunity to find out how the employment tribunal system looks from the inside.

The following is based on my note of the meeting. While obviously I think it’s an accurate account, it shouldn’t be taken as an official statement from the President, HMCTS or ACAS.

It’s also quite long — I’ve tried to put the most interesting stuff at the beginning.

Claims accepted

After the large drop in August and September, the number of cases accepted by the tribunal is rising slowly.

Both the President and HMCTS expect a slow rise until the numbers stabilise at their post-fee level. But it’s too early to say what that level will be — particularly with early conciliation coming in from 6th April 2014. They don’t expect to be able to draw clear conclusions about the post-fees level of tribunal work for another 12 months.

ACAS reports that the number of calls to their helpline remains steady. This suggests that the underlying level of workplace conflict remains much the same.

Fees / Remissions

About one third of remission applications are being granted on the first decision. Most remissions that are granted are granted in full — there are very few partial remissions.

Initial decisions are being made fairly rapidly. The oldest remission applications without a first decision is about two weeks old. Contrary to speculation (some of it mine) there is no large pile of unprocessed remission applications building up in Leicester.

However, there is a time-line impact, because it takes time to deal with fees / remission before accepting the claim and HMCTS statistics have always worked with accepted claims. They are considering whether to start publishing information on claims submitted as well.

HMCTS is actively reviewing the remission process, both within and beyond employment tribunals. They’re looking at the information provided to applicants and their own processes, with the aim of improving both the remission applications and the way they deal with them.

Apparently quite a lot of remission applications fail because, on their face, the applicant can’t pass the capital test (i.e. they have declared more than £3k disposable capital). There’s some suspicion that some unions require members to make an application for remission before they will fund the fee. If this is happening HMCTS would like them to change policy, because it’s causing unnecessary work.

Outstanding caseload

More than half of the outstanding caseload of about 600,000 claims isn’t ‘real’. In other words, it’s made up of airline working-time claims and insolvency claims, that are lodged with the tribunal, but which almost certainly won’t need judicial resolution.

Most of the claims heard by a tribunal are multi-day discrimination claims. A high proportion of unfair dismissal and wages claims settle.

Equal pay: almost all claims are against the state in one form or another. There are now very few central government claims and the number of claims against local government is dropping.

In general, the timeliness indicators in single cases have improved over the last four years. The average time to complete a case is dropping. Given the reduction in tribunal resources, HMCTS feels this is significant success.

Online portal

HMCTS is aware of difficulties with the online portal, both in terms of bugs and aspects of the process users would like to see improved. They’re working on both areas of this.

About 75% of claims now come through the online portal — compared with about 40% submitted online under the old system.

New Rules

From the tribunal’s perspective the introduction has gone smoothly and quietly.

Presidential guidance covering applications for postponements (and default judgments in Scotland) will be published in the next few days. These are the areas covered by the example guidance in the rules consultation. The published guidance will be very similar, but with a certain amount of updating and revision.

Next year, there will be more wide-ranging Presidential guidance, dealing particularly with case management. The ultimate aim is for there to be a single piece of umbrella guidance, online, with links to more specific guidance.

A Practice Direction under rule 88, providing for service on the Secretary of State, the Law Officers, and the Counsel General to the Welsh Assembly Government, in cases where they are not parties, will be released in the next couple of days. This will not involve any change in the current practice.

Early conciliation

We can expect regulations on early conciliation towards the end of January. The preparatory work within ACAS of producing guidance and training staff is going forward ahead of the regulations being finalised.

ACAS has added 40 new conciliators to its existing team of 240 in preparation. The new conciliators are appointed on a temporary basis (some are temporary promotions from within ACAS, some are on temporary contracts). Staffing levels will be reassessed when it’s clearer how much work there will be in both early conciliation and tribunal claim conciliation.

ACAS expects most applications for conciliation to be online. They hope to get 80% of applications that way. Their aim will be to call applicants the next working day.

The general approach will be to talk to both employees and employers and encourage them to consider engaging in discussion before a claim is lodged. ACAS will try to avoid pushing people into entrenched positions or linking the conciliation process with any tribunal claim. Partly for this reason, conciliation won’t involve writing down details of any potential claim.

Non-payment of awards

Ministers are engaged and concerned with this issue. They wanted up-to-date research to have an evidence base for further action. This has now been published.

It’s clear that non-payment is a multifaceted problem with no single solution. BIS are now considering their approach. They want to have better information and guidance for claimants — but they are also considering more wide-scale change to the way awards are enforced.

There is funding for a national pilot, in which claimants will be contacted about 42 days after the judgment. Half will only be asked if the award has been paid. The other half will be told about enforcement. BIS is hoping to establish if this sort of signposting makes a difference to enforcement rates. This pilot will go forward at the same time as other efforts on non-payment.

BIS is also concerned about phoenix companies. There has been some successful examples of them working with the investigative branch of the insolvency service. They hope to do more of this.

Financial penalties against respondents

These will come in from 6th April 2014. They are likely to be enforced by debt collection agencies, as HMRC debts are.

There might be consideration of the debt collectors enforcing unpaid awards to claimants at the same time. But discussions are at a very early stage on this.

Judicial mediation

The number of cases going to judicial mediation is slowly dropping. There appears to have been a change of policy among some parts of the public sector away from accepting mediation. Also the overall number of claims is down. Fees haven’t yet had an impact, because those cases aren’t yet far enough through the system.

At the moment no new judicial mediators are being trained. This will be looked at again when the full impact of recent changes can be assessed.

Regional reorganisation

This is mostly complete. The ultimate aim is that each of the 12 regions will have a single administration centre, which will do the back-office work for the other hearing venues in the region. For example, in London South administration is now concentrated in Croydon; Ashford is now purely a hearing venue.

The following regions are still being worked on:

  • South West: where decisions are still being made about what will happen.
  • East Midlands: Nottingham will be the regional centre. Administration will be from the Magistrates Court buildings. Hearings will be in the old coroners court, which will be refurbished for tribunal use. Although Leicester is the central administrative hub, it won’t deal with the any of the regional admin.
  • London North / West: decisions still being made about what to do.

Non-legal members

Now sitting in far fewer cases, generally only in discrimination claims. It’s very unusual for an unfair dismissal hearing to have non-legal members.

HMCTS estimate that there has been a hearing time saving of one third.

Tribunal / Court estate

This remains an important area of concern for HMCTS. The estate as a whole is at about 80% capacity. This means that, on any given day, one in five courts are empty. Some are permanently empty and some are underused.

This is a problem, because it means that the government is spending a lot of money on buildings that it isn’t using. Estate is likely to be a key issue in discussions of HMCTS funding and structure in the future.

There is a general principle that HMCTS will not hear civil cases in criminal courts unless it’s necessary. Where courts are refurbished it is common to curtain off criminal features, such as docks and the jury area. These aren’t permanently removed so that the court can repurposed again easily if necessary.

Recruitment

41 new fee-paid judges were appointed in the last round. They have recently completed their training and begun sitting.

There are no plans to recruit judges or non-legal members in the foreseeable future. Everyone is waiting to see what the ultimate impact of the changes is on work-load before making any decisions.