But for the tumbleweed floating down
the corridor in London Central Employment Tribunal (‘ET’), Reading and Cardiff,
to name but a few, it is eerily still and quiet in most ETs the country over.
For those of us more used to having to jostle for a tiny bit of space in the
waiting room, hoping not to get bumped off the hearing list and laughing in the
face of anyone making and expecting to have a decision on a case management
application in the week before a hearing, this is really rather odd.
The ETS staff must be finding all of
this strange. The brave face on show in the recent report by the Presidents of
the Employment Appeal Tribunal and ET within the report of the Senior President
of the Tribunals (see http://www.judiciary.gov.uk/wp-content/uploads/2015/02/senior_president_of_tribunals_annual_report_2015_final.pdf) seems nonetheless to recognise
that everyone is just carrying on as best they can, in good cheer, waiting for
something to change.
As we await the General Election
with bated breath, the Coalition Government has something to keep us occupied:
a consultation on postponements in the ET (see https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/395584/bis-15-29-consultation-on-amendments-to-employment-tribunal-postponement-procedures.pdf).
In short, the proposal is that any
application made less than 7 days before a hearing will be treated as “late”
and will only be granted in exceptional circumstances and after two applications
for a postponement have been made in proceedings an exceptional circumstances
regime also kicks in.
What is striking about the reference
to feedback from service users is that much feedback about costly, ill-timed
postponements came from a time when business was brisk; waiting rooms packed
and lists long. Many of the postponements were instigated by the ETS itself due
to unavailability of judicial resource or overcrowded/double booked lists. I
recall the incredulity writ large upon the face of clients, several of whom had
flown over from America, for a seven day long case which had been “bumped”
off the list on the first day of the hearing months earlier only for it to
happen again. Anecdotally across the Bar this was happening time and again. Recovering
costs in those circumstances is nigh impossible. However, this is a very
different system we are navigating and while no one can doubt the merit in
ensuring that all postponement applications are given careful and measured
thought, do we need this amendment? Mr Justice Underhill did not think it
necessary when writing the 2013 Rules and what we have seen since the
introduction of fees is a sharp decline in ET business and an atmosphere in
which the relisting of hearing, for good reason, should not be as difficult as
it once was. Can we not trust the exercise of judicial discretion in this area
as in the case of other case management powers? The amendment contained in the
proposed amendment regulations states in terms that it limits the general case
management powers of the Tribunal (see the proposed new regulation 30A).
Several questions remain unanswered.
What, for example, is to become of the practice of listing certain types of
hearing straightaway before statements of case have been drafted? Will an
application to postpone in those circumstances count or fall within the
exemption provision for postponements caused by an “act or omission” of the
Tribunal itself? Will sudden ill health generally be treated as exceptional and
will a higher standard of evidential proof come into play? What of breaches of
Case Management Orders that jeopardise preparation; is this truly exceptional
(anecdotally, again, it would seem not!).
The consultation is open for comment
until 12 March 2015.
Eleena Misra is Head of the Disciplinary & Regulatory Group in
Chambers, a Chambers & Partners and Legal 500 ranked Employment
practitioner, Panel Counsel to the EHRC and advises on Employment &
Equalities on the Law Reform Committee of the Bar Council. She practises in all
principal areas of Employment and Equalities law with a particular expertise in
healthcare and education cases.
