Monday 25th September 2023
PUBLISHED ARTICLES
Article 10
The Employment Tribunal and April’s New procedures
The changes to the statutory grievance and disciplinary procedures have
grabbed the employment law headlines this month but some other important changes
to employment tribunal procedure are also worth a mention.
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 the 1st 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 Judgement.
This requirement has been removed as from April 1st 2009.
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.
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 1st April 2009 a note
of an award by an employment tribunal or the EAT 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.
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 per cent
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 3rd 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.
By Charles Price, barrister No5 Chambers
www.charlesprice.net
This article Copyright HRZone - Written by Charles Price
