Employment tribunal system to be reformed and mediation and early conciliation introduced
In January 2011, the Government launched a consultation on reforms to the employment tribunal system. The reforms are designed to encourage the early resolution of disputes, streamline the tribunal process and help businesses feel more confident about hiring people.
Employment tribunal reform: The Government's proposals proposals for employment tribunal reform included measures relating to mediation and early conciliation (see below for further information); financial penalties for employers found to have breached an individual's rights; and a rapid resolution scheme for certain types of claims. Measures relating to "pre-termination negotiations" and the inadmissibility of evidence in unfair dismissal cases; the simplification of the employment tribunal process (by the introduction of a new set of procedural rules); and the introduction of employment tribunal fees were implemented by the Enterprise and Regulatory Reform Act 2013 (1.05MB) (on the UK Legislation website) with effect from 29 July 2013.
Financial penalties for employers: The Government proposed the introduction of a power for tribunals to order employers that have breached workers' rights to pay a financial penalty of between £100 and £5,000 where there are "aggravating features", the penalty being, in most cases, 50% of the amount of any award that the tribunal has made against the employer. The relevant provision is set out in s.16 of the Enterprise and Regulatory Reform Act 2013. According to the Government's indicative timetable (on the UK Government website) it has not yet set an implementation date for s.16.
Rapid resolution scheme: The Government initially proposed that certain low value, straightforward employment tribunal claims such as those for holiday pay, should be heard by legal officers (where the parties agree). However, the Government's indicative timetable (on the UK Government website) states that it has "no current plans to use" s.11 of the Enterprise and Regulatory Reform Act 2013, which permits the appointment of legal officers to determine employment tribunal proceedings.
Mediation and early conciliation: In Resolving workplace disputes: Government response to the consultation (PDF format, 364K) (on the UK Government website), the Government stated that, following the "Resolving workplace disputes consultation", it was "even more convinced" about the role that mediation can play. Accordingly, the relevant provisions of the Enterprise and Regulatory Reform Act 2013 (1.05MB) (on the UK Legislation website), when enacted, will, among other things:
- require prospective claimants in an employment dispute to send prescribed information to Acas before lodging an employment tribunal claim;
- require an Acas conciliation officer to attempt settlement between the prospective parties to the proceedings during the prescribed period;
- in the event that the conciliation officer concludes that a settlement is not possible during the prescribed period, or, the prescribed period expires without a settlement having been reached, require the conciliation officer to issue an early conciliation certificate to that effect to the prospective claimant;
- prevent a prospective claimant who is subject to the requirement to submit prescribed information to Acas from commencing "relevant proceedings" without an early conciliation certificate;
- allow the conciliation officer to continue to attempt settlement after the prescribed period has expired; and
- extend limitation periods to allow conciliation to take place.
On 17 January 2013, the Government launched a consultation on the detail of the early conciliation process (Early conciliation: a consultation on proposals for implementation (PDF format, 559K) (on the UK Government website)). The consultation states that Acas will have up to one calendar month from receipt of an early conciliation form (which prospective claimants will need to complete) to achieve a settlement (although this period may be extended by up to two weeks where both parties consent and Acas considers that there is a reasonable chance of reaching a settlement during the extended period). The matters on which the Government is seeking views include:
- the draft Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2013;
- the draft early conciliation form that prospective claimants will use to contact Acas and the Government's intention that the form should not require prospective claimants to provide information about the nature of their claim;
- the jurisdictions for which early conciliation will not be required, (other than where the Government already considers that the early conciliation requirement should not apply, namely where there is a very short limitation period and "complying with the requirement would not be practicable");
- whether or not the proposed early conciliation process, which will involve an early conciliation support officer making the initial contact with the prospective claimant and obtaining basic details before passing the matter on to a conciliation officer, is appropriate;
- whether or not there should be a limit on the number of attempts and/or maximum period during which, the early conciliation support officer should continue to attempt to contact the prospective claimant and whether or not the same constraints should be applied to prospective respondents; and
- the content of the early conciliation certificate that Acas must issue to allow prospective claimants to proceed with their claim.
The consultation closed on 15 February 2013. Acas's response to the consultation (PDF format, 42K) is available on its website. According to the Government's indicative timetable (on the UK Government website) early conciliation will be introduced on 6 April 2014.
- The introduction of employment tribunal fees Consultant editor Darren Newman asks what impact the introduction of employment tribunal fees will have on the number of tribunal claims being pursued, and considers the long-term future of the tribunal system.
- The XpertHR employment law manual sets out the law relating to tribunal procedures and other methods of resolution and unfair dismissal.
- Listen to consultant editor Darren Newman's views on some of the Government's proposals in a two-part interview on the XpertHR podcast. He gives his views on: "protected conversations"; employment tribunal fees; financial penalties for employers; and no-fault dismissals for micro-firms and rapid resolution for certain types of tribunal claims and employment judges hearing unfair dismissal claims alone.
- Tribunal Watch Keep up to date with employment tribunal issues on the XpertHR Tribunal Watch blog, which features tribunal cases that have made the headlines. You can also tell us what you think about the proposed reforms.
- Protected conversations: unnecessary and ill thought out? Consultant editor Darren Newman argues that the new clause to be added to the Enterprise and Regulatory Reform Bill on protected conversations in relation to unfair dismissal cases is ill conceived.
- In the employment tribunals XpertHR provides summaries of recent employment tribunal rulings, as well as full transcripts of the decisions.
Government guidance and documents
- The Government's consultation on Ending the employment relationship (PDF format, 303K), which sets out its proposals on facilitating the use of settlement agreements and introducing a reduced cap on the compensatory award for unfair dismissal, may be viewed on the UK Government website together with its response (Government response to the ending the employment relationship consultation (PDF format, 450K)).
- The Government's Resolving workplace disputes (PDF format, 528K) consultation, which sets out its proposals on employment tribunal reform is available on the UK Government website together with the Government's full response to the consultation (Resolving Workplace Disputes: Government response to the consultation (PDF format, 364K)).
- The Government's consultation on employment tribunal fees may be viewed on the Ministry of Justice website (Charging fees in employment tribunals and the Employment Appeal Tribunal (PDF document, 409K)) along with the Government's full response (Charging fees in employment tribunals and the Employment Appeal Tribunal (PDF format, 318.4K)).
- Mr Justice Underhill's recommendations on the reform of the Employment Tribunal Rules of Procedure may be viewed on the UK Government website together with the proposed new rules (Fundamental review of employment tribunal rules (PDF format, 153K) and Fundamental review of employment tribunal rules: employment tribunal rules of procedure (PDF format, 261K)).
- The Enterprise and Regulatory Reform Act 2013 (1.05MB) is available on the UK Legislation website.
- The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, which include the new tribunal rules, are also on the UK Legislation website.