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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Can't we just postpone making daft changes to the ET rules?

16 January 2015

The government is consulting on changes to the employment tribunal rules on postponements.

There are, broadly, three suggestions:

Where is the evidence of a problem?

The consultation contains no evidence there is a problem with ET postponements that needs solving.

There are two pieces of evidence about what’s happening in relation to postponements in the consultation document. You can find them on page 7, paragraphs 17-18, where we learn that in the two years up to 31st March 2013, there were about 67,750 postponements. We also learn that 80% of applications are made by claimants.

That might sound a lot, but in the same period the ET received 377,872 claims. So the average number of postponements per case started is something like 0.2.1 [Update: Richard Dunston points out I’m using the wrong figure here. I’m using jurisdictions, rather than claims. He’s quite right and the correct number of postponements per case is actually 0.54] In practice, I’m sure the figure is held down by cases that settle early. If you looked, for example, at the proportion of postponements in cases that get within two weeks of a hearing, I’m sure it would be significantly higher.

But a) the figure we’re given doesn’t suggest there is a problem and b) that sort of more detailed analysis is exactly the sort of thing that you might expect a government department to perform before proposing legislation.

I’m also interested that, although there is data on the proportion of applications made by claimants, there is no information about what proportion of applications are successful. So we can’t tell how robust the tribunal is being in refusing applications. And, although the wording might imply that claimants are responsible for the majority of the postponements, the figures don’t actually demonstrate that. [Update: James Laddie QC suggested I was reading this the wrong way and, having checked with MoJ, he was right. The consultation says that claimant applications account for 80% of successful postponement applications.]

Claimants are more likely to be unrepresented and it wouldn’t surprise me at all if, although they’re more likely to make applications, they’re also more likely to be refused.2

The consultation does try to work out how much it costs respondents when cases are postponed.

It does this by taking the average cost of a tribunal case in total, from the 2008 survey of ET applications. This is apparently £2,952.96.3 Then the consultation takes the number of days the survey found that employers spend dealing with a case (apparently it’s five) and the length of the average case (one – apparently taken from the survey, although you’d think HMCTS would have more recent data). It uses this information to calculate the cost of a hearing, on the basis that it will be one fifth of the total cost: £590.59.

Then it assumes that the cost of a postponement is the same as the cost of a hearing, so the cost of a postponement to an employer is £590.59.

This, I’m afraid is just nuts. I’ve no idea what postponements cost employers, but I’m sure it’s not exactly the same as the cost of actually going to the hearing!4

There is no attempt to calculate the cost impact of postponements on claimants. Which is interesting.

Some practical issues

One problem with setting a two day limit on postponement requests is that it means something very different depending on the type of case. In a short wages claim, that you’d expect to be resolved in a single hearing shortly after its lodged, two postponements is a lot. Especially when you think that it’s two postponements each. I’ve never known a simple wages claim require four postponements (although I’m sure it’s happened to someone).

But consider a long-running equal pay claim based on work of equal value, which, at the very least will require a stage 1 equal value hearing, followed by a stage 2 equal value hearing and then a final hearing (and this is the bare minimum). Here two postponements, over the course of a case lasting several years, really isn’t a lot.

As I write this, I’m starting to worry that someone will read it and conclude that what we really need to do is have different postponements limits depending on the type of case. Which would be a terrible idea for the fairly obvious reason that it would be hopelessly complicated.

The other problem is that the two postponements rule is based on who is asking for the postponements and not who has caused them. Quite often, the person asking for the postponement is doing so because of something the other side has done, such as made substantial disclosure late or amended a claim to add a whole new cause of action. If a postponement is granted in these circumstances, it generally means the tribunal agreed that the other side has created the need for the postponement. Why then should it ‘count against’ the person asking for it?

The rules try to allow for this, by saying the two postponement limit doesn’t apply to a postponement request that is made necessary by the other side. But that only creates the ridiculous position that it matters what order your postponement requests are made in.

Similarly, on occasion, I’ve effectively made postponement applications on behalf of the other side. If, for example, a litigant in person on the other side is in a bad car accident the day before the tribunal it may make sense for me to write to the tribunal saying ‘This has happened. The parties are in agreement that there should be a postponement’. Should this count towards my client’s allocation of postponement requests? Or should I just write some weasel lawyer’s words: ‘I understand that this happened. You might think that something should be done, but I couldn’t possibly comment.’

The rules also make no allowance for the impact of a postponement being granted. There is all the difference in the world between an application made several months before a hearing, when the case is simply put back a little, and one made a few weeks before a hearing when the other side is likely to be put to considerable inconvenience by rescheduling. Surely that is as important a factor as anything else? It seems mad for a party who asks for a postponement immediately upon a hearing being listing, even on fairly minor grounds, to be told its impossible simply because they have been granted two previous adjournments.

I’m also sceptical of one of the proposed exceptional circumstances, which suggests that postponements should be granted if both the parties and tribunal believe it is desirable to facilitate settlement. If that’s the case, then postponement is sensible. But, in my experience, tribunals generally feel that sticking to the date and thereby giving the parties a looming deadline, is more likely to facilitate settlement. And they’re normally right. So I just can’t see this arising very often.

More fundamentally

But all of these problems are just the symptoms of the underlying problem. The government is trying to draw up strict rules to govern what ought to be a nuanced exercise of discretion.

Attempting to do so is a bad idea, partly because it means that it’s insisting that Judges do something that they’re all already doing. Of course judges take into account the history of a case when considering postponement applications! We all know that, if you’re making the third application for a postponement, you better have strong reasons to support it, because the judge is likely to be thinking that the case is dragging on and needs to get resolved.

Trying to apply strict rules to this process manages to be both pointless and counter-productive. Pointless because it won’t make any difference to how applications are resolved. Counter-productive in that it will force judges (and parties) to jump through meaningless hoops when deciding routine applications.

Even more fundamentally

It seems to me that, by suggesting these rules, the government, on no evidence whatsoever, is suggesting that Employment Judges can’t be trusted to make sensible decisions unless the blindingly obvious is spelled out for them in the rules.

I don’t think that is the case. And, if I were an Employment Judge, I might be just a little angry about the implication.

But if the government does think it’s got a bunch of basically witless Employment Judges on its hands, then I can’t see why they think tweaking the rules is likely to help. Employment Judges have to be trusted to deal much more difficult issues than postponement applications.

I suspect though, that the government doesn’t really think that and that they don’t actually believe that these rules changes will make any difference. I’m afraid I think we’re in the world of theatrical legislation, where sending political messages is more important than achieving any real change. Which, if I’m entirely frank, I think is just a little bit contemptible.

  1. Receipts, of course, are not a perfect measure here, because many of those postponements will related to claims started before 1st April 2011 and some of the cases started in the relevant period will be postponed after 31st March 2013. But the receipts do they give a general idea of the volume of cases going through the system.

  2. For example, I see quite a few applications by litigants in person, especially claimants, suggesting that the hearing should be postponed because the other side has failed to follow case-management orders precisely. Quite often, these are refused by the tribunal, who generally take the view that a few days delay in, providing witness statements, isn’t a sensible basis for a postponement.

  3. Although I can’t find that figure in the 2008 survey, which doesn’t seem to include information on the financial costs to employers, although it does look at the amount of time spent on claims. I assume the costs of staff time have been taken from somewhere else and applied to the time periods from the 2008 survey. But this isn’t made clear in the consultation and, if that is what has been done, it’s not clear where the figures came from. [Update: MoJ have kindly clarified. The staff time cost is taken from 2013 provisional ASHE data to estimate the costs of the staff time. (ASHE 2013 Table 2.6a Hourly Pay - excluding overtime.)]

  4. Even if it was, it seems obvious that the hearing is likely to be the most expensive part of the case and therefore should be a higher proportion of the total cost.

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