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Online employment court could hear claims in future

The interim report on civil court structure by Lord Justice Briggs which came out recently fires the starting gun on fundamental changes to our court and employment tribunal system. Those responsible for employment issues within their companies should be aware of the seismic change that’s around the corner.

There have been many things wrong with our current regime. For example, employment cases are currently heard in two types of court: the employment tribunal and the High Court or county courts. Confusingly some claims, such as those for breach of contract following the end of the employment relationship, can be heard in either.

The biggest problem is that the majority of potential users (and this can include SME employers as well as employees) are completely shut out of the system because it is practically too expensive to use. The introduction of tribunal fees reduced the number of claims in broad terms by what most people accept is around 75 per cent.

The report has answers for this and while it concentrates on the current work of the High Court, county courts and the Court of Appeal, it also refers to employment tribunals. Although Briggs’ review will not be finalised until July 2016, it already lays out radical proposals which will help repair the current regime.

For a start we are going to see widespread ‘digitisation’ so that courts and tribunals will no longer drown in paper. They are going to insist on electronic communication only. The government has set aside £700 million to spend on this programme. In terms of case presentation in future, there will be a lot to learn.

There is to be a dramatic solution for our court and tribunal buildings which are, in certain parts of the country, woefully underused. For some claims, there are not going to be any! It is envisaged that claims worth below £25,000 will be dealt with ‘virtually’ via a new online court. Although the report does not specify this, it is likely this will include employment claims.

There is also the possibility (although this is not really articulated in the report) that it could herald a significant increase in the number of claims. The online application process may encourage those who cannot afford legal and other representation to begin legal proceedings at present. The power of the internet is articulated forcefully by Richard and Daniel Susskind in their book ‘The future of the professions’ published last year. Information may become much more accessible to would-be claimants, and employers may find they are going to have to run faster to keep up. Arguably the possibility of court challenges may have to be factored back into organisational decision-making.

Briggs clearly supports the concept of a single employment court, a proposal first mooted by the outgoing president of employment tribunals in England & Wales two years ago. Until recently many envisaged this would be part of the existing tribunals system. The report advocates it being brought over to the courts, which would mean different procedural rules for employment claims and, crucially, different costs rules. That may require HR advisers to adopt new strategies.

The big unknown is the role of Acas. The new Early Conciliation system, introduced almost two years ago, has been of considerable benefit to enlightened employers that have used the process to head off claims before a tribunal is involved, or otherwise to learn more about claims they are about to face. But what is its future if employment cases leave the tribunals for good and become part of the civil court process?

The timescale for these proposed changes is just four years. Whatever happens, the world of employment litigation is not going to look the same. HR professionals need to absorb what is to come as it will very much affect the way they handle employment cases in future.

Added: 29-01-2016

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