Thursday 31 May 2012 by Jonathan Rayner
Government plans to save time in employment tribunals by using 'legal officers' in place of judges appear to have split the profession.
One employment specialist described the idea as 'short-sighted and utterly wrong', while another told the Gazette that any innovation that 'allows heads to be knocked together' is to be welcomed. The plans, in the Enterprise and Regulatory Reform (E&RR) bill currently before parliament, are part of a proposed rapid resolution scheme for simple or low-value tribunal claims.
Under the scheme, parties would agree to their case being determined by a single 'legal officer' without the need for a hearing.
The Department for Business, Innovation & Skills (BIS) is to consult later this year on what qualifications and skills legal officers should have. The types of claim to which the rapid resolution scheme would apply are to be defined by secondary legislation, also probably later this year.
Hertfordshire firm Law Abroad director Kerry Underwood, who sat for eight years as a part-time employment judge, said: 'Employment tribunals are specialist jurisdictions requiring specialist judges sitting with panel members. The system works well, with fewer appeals than other tribunals, and to tamper with it risks discrediting the whole process.
'This is old-fashioned thinking from old-fashioned people that is short-sighted and utterly wrong.'
However, Gordon Turner of London firm Gordon Turner Employment Lawyers said that so many cases without merit appear before the tribunal that he welcomed any attempt to unblock the courts so that more substantive cases could be heard. He said: 'You don't need a judge for an unlawful deduction claim, just a person with a calculator. Legal officers could cut legal costs and public spending. Anything that allows heads to be knocked together must be a good thing.'
The E&RR bill also proposes changes to employment tribunal procedure to allow a judge to sit alone in appropriate cases. Another measure would oblige claimants to seek a settlement through ACAS before going to an employment tribunal.
Legislation to protect whistleblowers is to be amended so that it applies only where the individual has made a disclosure in the public interest.
Other changes include: varying the cap on unfair dismissal awards, so that the limit could be lowered for smaller firms, and allowing tribunals to impose financial penalties on employers who have breached employment rights where there have been 'aggravating features'.