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Employment tribunals and April’s new procedures


TribunalsThe changes to the statutory grievance and disciplinary procedures have grabbed the employment law headlines this month, but some other important changes to the employment tribunal procedure are also worth a mention, says Charles Price.

An order amending section 4(3) of the Employment Tribunals Act 1996 will now allow an employment judge to sit alone when hearing complaints involving proceedings, in respect of payments relating to leave entitlement under the working Time Regulations 1998. In short, this means that there will be more chance of your case being heard quickly. This is invaluable with more and more ‘floating cases’ (where a case joins a queue of cases waiting for an available judge) becoming a likelihood.

Another change effective from 1 April 2009 is that employment tribunals have no power to enforce their awards. Instead, any cash award made by an employment tribunal must be enforced as if it were payable under an order of a County Court in England and Wales. In addition, previously, in order to enforce a tribunal award in the County Court (or High Court) the tribunal award had to be registered in that forum if the award was to be enforceable.

Traditionally an N322A form would be filled out along with £35 to register the judgment. This requirement was removed as from 1 April 2009.

“To try to enforce an unpaid award, claimants must enter into the bewilderingly complex and costly civil litigation system.”

It is well documented that some rogue employers are exploiting that fact that employment tribunals have no powers to enforce the awards made, according to the CAB, resulting in as many as 1,500 claimants a year not receiving their award when their employer fails to pay up.

Often, the majority of the individuals denied their monetary awards are (or were) employed in low-paid, low-skilled jobs, commonly: retail assistants; kitchen and catering assistants; cleaners; construction workers; bar and waiting staff; drivers and care workers. A significant minority (at least 10%) are migrant workers, especially from countries such as Poland, Latvia and the Czech Republic.

Civil litigation

To try to enforce an unpaid award, claimants must enter into the bewilderingly complex and costly civil litigation system. This may involve further solicitor and application fees. Many give up the struggle through frustration, anxiety or mounting expense. Unfortunately, the alternative proposal that the government initially pay all tribunal awards has a snowball’s chance in hell of being approved.

Something, which may assist is that with effect from 1 April 2009 a note of an award by an employment tribunal or the employment appeal tribunal can be made in the official register which is open to the public (and credit agencies).

Despite a general propensity to tinker with tribunal procedures, especially those which govern grievances and disciplinary hearings, it seems that the number of employment claims are inexorably increasing.

“For the first time in a long time unfair dismissal claims have not topped the list.”

Figures released in March by the Tribunals Service show that the total number of employment tribunal claims for 2007/08 was up by more than 40% on the previous year. The increase was from 132,600 claims in 2006/07 to 189,300 in 2007/2008.

Many of these included claims under more than one jurisdiction – for example, unfair dismissal and sex discrimination – so that the absolute total was an increase from 238,546 in 2006/07 to 296,963 in 2007/2008.

For the first time in a long time unfair dismissal claims have not topped the list. Unfair dismissal was third by number of claims in 2007/2008 when there were approximately 41,000 such claims (which give or take a bit is around the normal number).

The regular increase in the number of equal pay claims each year continued. Equal pay claims now top the list. There were 62,706 equal pay claims in 2007/2008. The number of such claims has risen year by year since 2003/04, from 4,412 to 8,229, to 17,268, to 44,013 and to 62,706 in 2007/2008.

The other main change over the last five years is in the number of Working Time related claims. Working Time related claims came second in the list in 2007/2008 when there were 55,712 such claims. The number of Working Time related claims has varied widely up and down since 2003/04 from 16,869 to 3,223 to 35,474, to 21,127 and to 55,712 in 2007/2008.

Personally, I have seen a huge increase in claims relating to CIS card holding workers and the definition of ‘self employed’ as opposed to a ‘worker’. This area could also benefit from legislation to clear the muddy waters.

Charles Price is a barrister at No5 Chambers.

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