EMPLOYMENT TRIBUNALS England & Wales. 24th MEETING OF NATIONAL USER GROUP

Transcription

1 EMPLOYMENT TRIBUNALS England & Wales 24th MEETING OF NATIONAL USER GROUP Minutes of the National User Group meeting held at Victory House on 1 October In attendance: Liz Potter Emma Wilkinson Mike Reed Marie van der Zyl Hannah Reed Martyn West Laurie Anstis David Schumm Richard Boyd Noel Lambert Fionnuala Horrocks-Burns Bronwyn McKenna Susan Walker Francesca West Omar Khalil Bill Dowse Simon Carr Jackie Hunsley-Wilson REJ London Central Citizens Advice Free Representation Unit Employment Law Association TUC Peninsula Business Services The Law Society HMCTS Business Innovation and Skills Acas CBI UNISON Employment Tribunals Scotland Public Concern at Work Engineering Employer s Foundation HMCTS Senior Presidents Office HMCTS (minutes) Apologies: Neil Bull Cathy James Ian Moss Damian Brown BIS Public Concern at Work Citizens Advice Bureau Littleton Chambers Item 1 Welcome & Introductions In the President s absence REJ Potter welcomed members to the 24th meeting of the Employment Tribunal National User Group (England & Wales). LP gave everyone the opportunity to introduce themselves due to a few newcomers. 1

2 Item 2 Minutes of the meeting of 1 st July 2014 The minutes of the previous meeting were approved and accepted. Item 3 Action Points LP read the President s report on these points in his absence. We are in the process of reallocating the budget for using fee-paid judges from regions where there is reduced demand to regions where there is most demand. This is likely to result in a reduction in the overall budget for session days in the second half of 2014/15, but in a managed way, rather than as an across the board cut. Both Presidents saw a demonstration last week of the proposed new online system for presenting ET1s and ET3. It appeared very user-friendly. Users are involved in user testing. Crucially it includes a save and return function. This seems to be on track for introduction by the end of the year. We are also quite advanced in our review of how applications and correspondence are referred to a judge and how the judge's instructions are then acted upon. It is hoped that improvements in efficiency and performance can be introduced as a result. Item 4 Employment Tribunal Report - President In the President s absence REJ Potter read the report on his behalf. See: Ministry of Justice, Tribunals Statistics Quarterly: April to June 2014 (September 2014) The latest figures allow us to compare 2013/14 with 2012/13. With c 106,000 new claims, total claims have fallen by 45%. Singles of c 34,000 represent a fall of 38% and multiples of c 72,000 represent a fall of 47%. But only 8 months of that year were affected by fees. So the better comparison is between Q1 2013/14 and Q1 2014/15 before fees were introduced and not including the spike of claims in July What we see is an overall fall of 81%, being a fall of 70% in singles and 85% in multiples. We can also see the first effects of Acas early conciliation by comparing Q4 2013/14 with Q1 2014/15. What we see as a result is a fall of 22% in all claims, 33% in singles and 11% in multiples. It is very early for firm conclusions, but that looks to be much more in line with the impact we might have anticipated of early conciliation without the combined effect of fees. No doubt Noel Lambert will say more in his report in a moment. An explanation in part for the sharp fall in claims represented by multiple cases is due to the settlement of the airline holiday pay litigation that had previously resulted in the presentation and re-presentation in every quarter of approximately 14,000 claims (approximately 56,000 per year). As these 2

3 claims settled during 2013 they will have fallen out of the quarterly data, thus emphasising the difference in the caseload when compared with the same quarter 12 months earlier. However, this is insufficient to explain the full dramatic effect of the fall. It appears to me that the claims that have experienced the most noticeable fall are the fast track cases (wages, notice pay, holiday pay and redundancy pay), which may be being presented in the County Court and the Sheriff Court instead (although we simply do not know that for certain), and the standard track cases (unfair dismissal complaints in the main), which cannot be litigated in the ordinary courts. The position with open track cases (discrimination claims) is more complex, with some types of discrimination claims (for example, sex discrimination) showing a steep decline in new presentations, while the decline in some others is less marked. On the limited amount of information available to us, however, more of these cases than other types are standing up for hearing. The latest statistics report a live caseload of c 461,000 cases. That is appalling, you might say, and you would be right if that figure told the complete story. Only c 8,000 of those cases are single claims, of which c 3,500 were received in the last year. We are disposing of about 4,800 cases per month, so you can see that there is no cause for concern about how long single cases remain in the caseload. About 453,000 of the live caseload are multiple cases. Many of those are stayed because of proceedings in other courts or on appeal or because of insolvency proceedings or because the parties are in negotiations or because it suits the parties for there to be no action taken upon them. But the really telling piece of evidence is that c 255,000 of those cases are at the Croydon ET. They are the airline holiday pay cases, which have been serially presented and re-presented every three months over the last few years while the lead cases wended their way through the domestic and European courts. This series of multiples and sub-multiples represents about 365,000 claims, of which almost 120,000 claims have settled, leaving about 245,000 claims remaining to be disposed of. Nearly all of those cases have settled in reality, but they are not yet formally disposed of. They are not live in any true sense, but they remain in the statistics, giving a false impression of the Tribunal s backlog and misleadingly influencing the comparative data for 2013/14 and 2014/15. Our measure of performance remains maximising the number of claims that come to a final hearing within 26 weeks. Money claims are listed at the same time as serving the ET1 and nearly all such claims can be heard within 8 weeks. Unfair dismissal claims are also listed at service, with a default listing if 1 day. The large majority of those claims are heard within 16 weeks. We are now listing discrimination claims at service for a case management hearing within 8 weeks. The intention is to maximise the chances of these claims being readied for a final hearing within 26 weeks. Item 5 Policy Report DS provided an update concerning the online process:- 3

4 At the last meeting Gillian Brooks gave details of the project to improve the online process for completing and submitting an ET1 & ET3. Following that meeting volunteers were sought from users to support the trialling and testing of the proposed changes. Changes which we hope will include; save and return functionality, better and more visible guidance, clearer form structure, downloadable pdf/rft document and a better facility to edit forms. The next phase of development will include a live trial in Scotland beginning in week commencing 13 October for single claimant, single respondent applications. This trial will include representatives from Thompsons and McGrades as external user testers. In this phase forms will have to be submitted by post as the system will not be developed sufficiently to allow submission through to the back offices. The timetable for later stage development is expected to run along the following lines: week commencing 27 October - live trial with same firms for multiple claimants & respondents. Submissions still by post. early November - soft launch of forms with submissions routing into the back offices. mid to late November depending on the degree of issues arising and project dependencies - full launch of new forms and assessment against the overall project criteria DS notified that there would be a live trial in Scotland on 13 th October There would then be an introduction in late November HR mentioned that Trade Union representatives were not being given sufficient notice of trials: two days notice of a trial going on in another part of the country was too short. Trade Union reps were grateful for participation but needed more notice. DS confirmed that this would be taken into consideration Fees Report BD advised that Ministers had not yet announced the Fees Review but an announcement was expected shortly. MvdZ queried if there was data available on how many people were exempt from fees and stated it was not fair for people who had no available funds to be denied access to justice. BD replied that a colleague was gathering information from the Central Office which might be relevant but it was not yet clear precisely what would be available on fee remissions. HR queried whether there would be a call for evidence and an opportunity for stakeholders to inform the review. She also asked for a timeline of the review. BD could not guarantee that there would be a call for evidence. It would depend whether there was a gap in the evidence best filled by this means. BD added that the best guess he could give for a completion of a Fees Review would be after the General Election. Item 6 BIS Report RB informed that there would be a stakeholder event on 14 th October concerning the Small Business Enterprise and Employment Bill, covering zero hours, minimum wage, whistleblowing, financial penalties and any other further concerns stakeholders had. BIS were aware of a range of causes of lack of successful enforcement including a lack of knowledge of processes available and some people dropping out from the process. The reasons for 4

5 lack of success needed to be collated. HR welcomed the initiatives of Government addressing the issue of enforcement but questioned how the end system would be better than the existing one. RB said it would complement it not replace it. A short discussion took place concerning phoenix companies and the need for powers to tackle non payment of awards by companies who underwent insolvency, only to re-emerge under another company name. MR commented that the Inland Revenue have effective routes to retrieve monies from bank accounts but there is no comparable company law in relation to recovery from phoenix companies. Item 7 Acas Report NL reported early conciliation was designed to build on the success of the pre-claim conciliation scheme. Following launch in April the first quarter results had been much as predicted. Statistics after the first 6 months should give a better indication of ET avoidance rates. At 12 months the results in terms of overall satisfaction should be clearer. MR asked if there were statistics showing the amounts Claimants were settling for. NL replied there were no plans to produce such information. MR was concerned that some could be settling too early for too little depending on how well advised they were, but also due to the mental stress felt by Claimants. NL replied that settlement amounts themselves would not tell you what was happening. EW & MR confirmed the opinion that people knowingly accept low awards due to the mental stress of the process. NL reiterated that the Acas role was not to put pressure on the employer, their role was purely to facilitate settlement. Employers can also approach Acas if a S18B Employment Tribunal Act request for conciliation is initiated. NL notified large multiples currently going through early conciliation which concerned holiday pay following the decision in Lock v British Gas. About 300 group claims had been received, 90% of which had been presented in Scotland. It was a problem linking multiples and groups of individual claimants in such circumstances but through intelligence gained by the Acas helpline they were seeking to consolidate the handling of these claims with a limited number of conciliators. HR anticipated a number of cases going through to Tribunal claims. SW said that a small team had been appointed to deal with those in Scotland which consisted of one Judge and support staff. There was a possibility many claims would settle., At the moment the Scottish Respondents were mainly local authorities and the NHS There would be cross border discussions between Scotland and England and Wales if appropriate in relation to the handling of the claims. LP confirmed that Presidential Directions and lead cases would be considered if appropriate. At present the likely mix of private & public sector cases was not clear so a wait and see approach was necessary. 5

6 Item 8 Any other business MR commented that he had noticed in the last 9 months that a couple of Preliminary Hearings had been listed but there had been no information on the Notice of Hearing as to why this had been arranged. LP said that with Case Management Discussions and Pre Hearing Reviews being replaced by Preliminary Hearings there were now separate standard form notices of hearing for public and private Preliminary Hearings. The standard notice for private hearings set out a list of agenda items. It was recognised that care was needed in specifying the purpose in the notice of hearing for a public Preliminary Hearing. Item 9 Date of next meeting LP informed everyone of the dates the President wished the future meeting to take place: Wednesday 4 th February pm Wednesday 3 rd June pm Wednesday 7 th October 2015@ pm 6