Working Theory

by Michael Reed

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I do employment law for the Free Representation Unit.

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michael at workingtheory.co.uk

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Sifting in the Employment Tribunal

11 July 2012

The Underhill redraft of the Employment Tribunal rules is out. Being a bit of a geek when it comes to rules, I’m sure I’ll have a lot to say about it.

One of the things that it introduces is an ‘Initial Consideration of Claim Form and Response’ at rules 22-25.

This would require the tribunal, after both claim and response are received, to consider the papers to confirm that both parties are presenting arguable complaints and defences. If the tribunal considers that a claim, or part of it, doesn’t have reasonable prospects of success, it will be dismissed. If a defence, or part of it, doesn’t have reasonable prospects of success, it too will be dismissed.

If a party disagrees with the Judge’s view, they can ask for an oral hearing to argue that their case did have reasonable prospects of success.

This approach will be familiar to anyone who works in the Employment Appeal Tribunal. It is very similar to their sift. This examines incoming appeals on paper, and rejects those that don’t appear to raise an error of law. When an appellant disagrees with a rejection, they can ask for an oral permission hearing.

I think the EAT’s sift is a good thing.1 But I worry about how a similar process would work at the employment tribunal stage.

The EAT sift works because most appeals are easy to consider on the papers. The point in an appeal is to identify an error of law with the tribunal’s decision. The EAT can read the decision, read a notice of appeal that criticises it, understand the legal argument and make up its mind. One could imagine a system where appeals were dealt with without oral hearings at all. It wouldn’t be as good as the current system, but it could work.

For the same reason, the paper sift can do a good job of sorting cases into those with a reasonable prospect of success and those without.

This is much harder to do with first instance cases, because they almost always involve disputed facts. A Claimant says that the disciplinary hearing was a farce because employer just shouted at them; the Respondent denies it. A Respondent says their employee signed a revised contract; the Claimant says she didn’t. Such issues are impossible to resolve on paper, at least without departing radically from how we generally decide disputed issues of fact.

Even when there might be sufficient documentary evidence to make a stab at resolving the factual issue on the papers, that probably won’t have been produced at this initial consideration stage, where the tribunal looks at only the claim form and response.

So the initial consideration of claim form and response will produce two very small piles of cases that either obviously do have strong prospects of success or don’t (or where the same is true of the response). And a third, gargantuan pile of cases where it’s just impossible to tell.

That third pile will have to proceed, because knocking them out would be unfair (and how would you decide whether to dismiss the claim or the response?) Dismissing them would also be labour intensive, because it would so often lead to a further hearing after which they had to be put back in.

If an initial sift can’t knock out a significant number of unmeritorious cases and defences, I’m not sure the advantages are worth the opportunity cost. Making this initial assessment will use up judicial time, as will hearing the oral applications for cases to continue. I think this time could be better used elsewhere.

This view might be mitigated by the fact that judges will also make case management decisions at this point. If a judge was to consider the papers in detail, and make bespoke directions for a case, this would be an excellent thing for that case.2 But I strongly suspect that in the vast majority of cases, we’ll simply have standard directions requiring disclosure and exchange of witness statement etc. Those orders deal with 95% of what is needed in 99% of cases. It doesn’t make sense for Judges to spend an hour or so on each case to go beyond that. We’d need significantly more judges to do that – which we won’t get. Even if we did, again they could probably be better used elsewhere.

  1. No process is perfect. The good thing about the EAT’s sift is that it deals quickly and efficiently with a large number of futile appeals, without imposing costs on the other party. The bad thing is that it does make mistakes. Some percentage of appeals that should be let through aren’t. Sometimes this is corrected at the oral hearing but a) this wastes time and b) some people with good appeals don’t press the point. Personally, I think the benefits outweigh the costs.

  2. For example, if a judge teased out the ambiguities and missing information in both the claim and response so as to issue a detailed order for further information to clarify the issues this would often be very helpful.

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