There are more changes to the tribunal system which came into effect on the same day and which will alter the way a claim is dealt with by the employment tribunal, all of which have the aim of saving the Government money.

The most obvious change is that for many cases an employment tribunal will no longer be made up of three members, but will be heard by an employment judge sitting alone. This will apply to all unfair dismissal claims which don’t involve a claim for discrimination too, unless the tribunal decide it would be more appropriate to have a full tribunal hear the claim. If you think there are good reasons why your case should still be heard by a full panel then you can make representations about this to the tribunal which is obliged to consider the wishes of the parties. However at this stage it is unclear what factors, if any, are likely to be classed as good reasons for a tribunal to sit with lay members

A further change aimed to speed up the process is that in nearly all cases witnesses will no longer read out their evidence aloud but the judge will simply read their prepared statement. This has the advantage of shortening the length of hearing (the Government estimates the average hearing length will fall by 10%) and hopefully as a result the time taken for a case to be listed will also be quicker. It has the disadvantage that the witness will be unable to correct any typing errors in their statement or clarify what they meant, and so it is more important than ever that your witness statement is fully accurate and contains everything you want to say.

The maximum amount that the employment tribunal can award in costs has increased from £10,000 to £20,000. However this does not change the general rule that in most cases each side is responsible for their own legal costs, whether they win or lose their case. It is only where a party acts vexatiously or unreasonably or where the bringing or conducting of proceedings is misconceived that costs may be awarded.

Previously at the end of your case you could claim limited amounts from the employment tribunal for the costs involved in attending a tribunal hearing. This has now stopped and you can no longer claim the cost of travel or loss of earnings from the tribunal. However the tribunal now has discretion to order that the losing party pays the costs of the other side’s witnesses attending the hearing. It remains to be seen how often this will be ordered. If you require a medical report to try to show that you have a disability then you can still apply to the tribunal for a contribution towards the costs of such a report.

The Government has said that it wants businesses to feel more confident in hiring people and it estimates that this change will lead to about 2000 fewer unfair dismissal claims each year. It also believes that employers are more likely to take on new employees if they are not faced with the possibility of an unfair dismissal claim after just a year, but it has not estimated how many jobs will be created because of this new measure. The answer may be not very many given that a recent survey found that fear of unfair dismissal claims is not in the list of  top ten reasons given by employers for not taking on more staff. We will just have to wait and see.

What national statistics do show is that there are approximately 2.5 million employees in the UK who have between 1 and 2 years’ service. The workers in that position next year will have far less employment protection than any employee who started work before 6^th April.

There has been a 2 year qualifying period before- it was raised to 2 years in 1985 by Margaret Thatcher’s Government and only reduced back down to one year when Labour came into power. Last time an unsuccessful challenge was made against the increase on the basis that a longer qualifying period discriminated against women. This time the Government accepts that the increase in qualifying period will have a disproportionate effect on younger workers but believes this is just a fact of life and that the increase is a proportionate means of achieving a legitimate aim. However, if  this view is challenged by trades unions claiming that the increase to two years amounts to  age discrimination, this will lead to a lot of stayed claims clogging up the Tribunal system- hardly an obvious improvement – whilst the Government attempts to justify the increase through the Courts.

If you are dismissed and do not have sufficient service to claim unfair dismissal, all may not be lost. You may still have the right to claim that you have been automatically unfairly dismissed or that you suffered discrimination because of a protected characteristic, but this may be hard to prove, and it is never a good idea to just assume that the reason you were dismissed was because you happen to be gay/ black/ disabled. You will need some evidence of discrimination if your claim is to have any chance of success.

At the moment we already receive a lot of enquiries from employees who believe they have been dismissed unfairly, often just short of one full year’s service, and whom we have to advise that they do not have the right to make an unfair dismissal claim. In the future we have no doubt that we will receive calls from employees who believe they have done a good job but are dismissed by their employer just before they have completed 2 years service.

Of the 49300 claims that reached a full hearing last year 57% were successful. So although making a claim against your employer can be a daunting prospect, and employers and their representatives may try to make this difficult for you, this shouldn’t dissuade you from bringing a legitimate complaint- whether it be for unfair dismissal, discrimination or some other claim. There are risks and costs involved in all litigation which is why many claims are settled before a Tribunal hearing is reached, and again this is borne out by the statistics.

However what the statistics don’t show is how many settlements and Tribunal awards are actually paid by the employer. It is hard enough to bring and win an unfair dismissal claim, but often winning the claim is the easy part. Some unscrupulous former employers go into liquidation, or start trading under a different name to try to avoid payment of tribunal judgments.

If an employer is insolvent, the Government may pay a small part of the judgment through the Insolvency Service, but the vast majority of any award is likely to be unenforceable.

Ministry of Justice research in 2009 found that 39% of recent tribunal awards had not been paid at all and a further 8% had only been paid in part. As a result of this research a so called fast track enforcement scheme was introduced in April 2010 to allow successful claimants to enforce Tribunal awards and settlements through the High Court Enforcement Office.

The idea of the scheme was to simplify and speed up the enforcement process. Judgments no longer have to be registered with the County Court and if you have an unsatisfied judgment or settlement you just need to complete a simple application form and pay a court fee of £60 to start off the process.  If the enforcement is completely successful you will be paid back the court fee together with the full tribunal award and interest. On behalf of our clients we needed to make use of this scheme on several occasions last year- with mixed results.

Sometimes the Sheriff manages to obtain immediate payment in full. In other cases the employer will agree a payment plan to pay the debt in instalments.

The High Court Enforcement Office that we use has also reported delays in paperwork mean that the scheme is not as fast as originally envisaged, giving rogue employers plenty of time to find ways  to evade payment.

The Ministry of Justice advised that in the first year since it was introduced successful claimants have tried to enforce 1495 unpaid Employment Tribunal awards using the fast track enforcement scheme, resulting in 42.5% of these awards being fully recovered. This percentage may improve but so far the results are worse than the results of the research in 2009 when it was found that 53% of judgments had been fully paid. They did not state in how many cases no recovery has been made at all.

So although using a High Court Enforcement Officer is likely to be the best method to try to enforce an unpaid settlement or judgment, in our experience and on the Ministry of Justice’s own figures, there is still a long way to go before there is a completely effective enforcement process.

The limit on a week’s pay (which is used to calculate statutory redundancy pay and unfair dismissal basic awards) increases from £400 to £430 per week which means that the maximum statutory redundancy payment and basic award increases from £12,000 to £12,900. As before the maximum award will only apply if you are at least 61 years old and have 20 years or more continuous service.

The maximum compensatory award for unfair dismissal claims will rise to £72,300 from £68,400, but bear in mind that although Tribunals can award up to this amount, compensation is dependent on the dismissed employee’s actual losses and is subject to the duty to mitigate loss. Employment Tribunal statistics published last year show that in the majority of successful unfair dismissal claims less than £5000 was actually awarded.

The new limits apply in all cases where dismissal takes place on or after 1^st February 2012. For earlier dismissal dates the old figures still apply.

The main changes announced to take effect from April 2012 are as follows:

• As already widely publicised the Government intends to increase the time an employee has to work for an employer before having the right to claim unfair dismissal from one year to two years. This is despite the fact that the majority of people who took part in the consultation were against this idea.
• Unfair dismissal claims can be heard by a Judge sitting alone rather than the current panel of 3 members which makes up most Tribunals. This is being brought in as a pure cost saving measure despite the fact that again most people who responded to the consultation disagreed with the proposal.

Other proposals which the Government has outlined include:

• A fundamental review of Tribunal procedures and rules.
• Tribunal fees – the Government is clearly intent on introducing fees. In the initial consultation document it said that it would consult about this in Spring 2011. That consultation did not take place and the Government has now announced that fees of some kind will be introduced. No consultation document or firm proposals have yet been published.
• Early conciliation- Before any claim can be made to the employment tribunal, a claimant will have to lodge details of the claim with ACAS to see if it can be resolved without the need for tribunal proceedings. There will be a standard form to complete to submit the claim to ACAS. The normal 3 month time limit for submitting a claim to the Tribunal will still apply in most cases but new rules will be brought in to detail how the time for ACAS conciliation will interact with the time limits for bringing a claim.
• Employers are to be encouraged to make more use of compromise agreements to avoid employment tribunal proceedings. The Government proposes making changes as to how they operate with a view to making them simpler. One proposed change is to alter the name of a compromise agreement to a settlement agreement which seems unlikely to make much difference to the process!
• Allowing “protected conversations” between employers and employees which could then not be referred to in any subsequent Tribunal proceedings. Quite how this will work in practice remains to be seen. If there is a genuine dispute between the employer and employee then an employer is already entitled to speak to the employee on a “without prejudice” basis and where employers are unhappy with an employee’s performance, there should already be disciplinary and capability procedures in place to deal with this, so why employers should be able to say something to an employee which the employee is not allowed to repeat seems very unfair.
• A “rapid resolution scheme” as a cheaper and quicker  alternative to  the employment tribunal for straightforward claims.
• Financial penalties  for employers found to have breached employment rights.
• Reducing the minimum period for consultation on redundancy.
• Altering the regulations on Transfer of Undertakings
• Introduction of “no-fault dismissals” for micro businesses with less than ten employees and/or looking at simpler dismissal procedures for these employers.

The Government seems to have a firmly placed view that at the moment it is too difficult for employers to sack under-performing staff, but this is not our view, nor the view of the many employees for whom we act.

Vince Cable stated that the package of measures proposed by the Government was aimed “to improve the way businesses hire, manage and end relationships with employees, when this proves necessary”.  There is much talk of employment procedures being too complicated for small businesses to follow and needing to be simpler, but surely it would be much easier for everyone (both employers and employees) to know where they stand rather than making frequent changes to the employment tribunal procedures? It was only in 2009 that the new ACAS Code of Practice on disciplinary and grievances procedures was introduced. Now we will be faced with more changes.

Whilst it remains to be seen how effective the proposals will be in creating jobs, it seems clear that these proposals will reduce employment protection for employees and make it much easier for employers to dismiss without consequence.

The most common form of funding in the employment tribunal cases which we deal with is the so called ‘no win no fee’ agreement.

If you do not have legal expenses insurance and are not a member of an organisation such as a trade union which might fund your case then you are left with two main options if you intend to make a claim in the employment tribunal.

The first is to deal with the case yourself. No doubt many people do this successfully but the law and procedure are complex and it is common to feel the need for professional help.

It is likely then that you will look for a no win no fee agreement to avoid the risk of losing your claim  and still having a  bill to pay There is a third option which is to pay costs on a private fee paying basis. In some cases this is the best choice for funding but in most circumstances it would prove far too expensive which is why no win no fee is so commonly the preferred option.

Regulations limit the solicitor’s fee to 35% (including VAT) of any sums which the claimant receives. Though there is nothing to stop a smaller fee being charged- in almost all cases it will be the maximum. The term ‘no win no fee’ in practice is true but in a technical way it is not quite correct. If the claim is not won there is still a 35% fee- 35% of nothing.

The same fee applies whether the claim is won at a full tribunal hearing or whether agreement is reached on settlement at any stage.

At first sight it might appear unfair that the same percentage is charged regardless of the strength of the case, regardless of its value and regardless of whether (as rarely happens) it is settled right at the very beginning or after two lengthy hearings (one to decide upon responsibility and one to decide upon value). There are two main reasons for this.

Firstly the reality is that the only way the system works is for good cases of relatively high value to subsidise the time spent reviewing potential cases and the inevitable proportion that do not go smoothly.

The second reason is that all cases are risky. The case is taken on and the fee is set before all the facts are known and before all the documents are seen.  Few if any claims have an outcome which is clear from the beginning. Sometimes claims are successful but the sum awarded is small- it is even possible to ‘win’ but to be awarded no money at all- though this is most unusual. There is also the risk that the employer will try to evade payment. This happens all too often. We have had several cases recently where companies have ceased trading either during the course of proceedings or after tribunal awards have been made against them.

Occasionally there will be a need for payments to be made to others- for example for medical reports or for medical records (as you might expect this is most common in disability discrimination claims). The client is normally responsible for these win or lose.

Another factor which needs to be dealt with in a no win no fee agreement is the possibility that things will not go to plan and for one reason or another the client and solicitor part company before the case is finished. An agreement will always include machinery to deal with such an event.

There is also the possibility that a claim will be successful but the outcome will not be a straightforward monetary award. This is quite unusual. The most common example is where a dismissed employee is re-instated in their old job. Provision is made in the agreement for the client to make a payment calculated by reference to a claim of notional value should they be fortunate enough to be given their job back.

Despite being the commonest way of funding for those with no external source of funds a no win no fee agreement is really the last resort. Even so apart from the obvious and significant drawback that a successful claimant receives only 65% of their compensation- in most cases the no win no fee agreement provides a satisfactory and trouble free way to fund a claim.

The consultation proposes numerous changes to the administration of employment law under a dozen or so major headings. The proposals are aimed at saving government money, making life easier for employers and making life more difficult for employees.

There is nothing wrong with the government saving money without affecting justice. Many of the proposals look like they will do that.

But any employee who has issued an employment tribunal claim will be dismayed that the government seems to think it was too easy for them- and too hard for their employer.

Statistics are said to show that legions of fairly and squarely dismissed employees are romping away with thousands of pounds each from their ex-employer because it is too difficult for the employer to resist the claim. Of course the statistics show no such thing. Partly because the statisticians do not gather such information. Partly because it is not true.

Not content with the huge imbalance of resources that usually applies between an employer and an employee and the restrictive interpretation placed on the law by the tribunals- the government now wants dismissed employees to pay for the privilege of being unfairly dismissed.

It is plainly wrong to charge a fee to someone who has just been thrown out of work (perhaps because of outrageous conduct on the part of their employer) and has been left with no income- and perhaps with a family to look after.

Short time limits which apply in the tribunal system- first intended to speed up access to justice- will have the opposite effect of denying justice by requiring a payment from claimants when their finances are weakest.

It is no answer to say that the fee will be refundable at the successful conclusion of a claim. Many people with strong grounds for a claim will be prevented by the fee from making a claim at all- regardless of how much they might receive in the end.

By way of adding insult to injury there is a proposal to levy ‘Financial Penalties’ against an employer who breaches an employee’s rights. The sums awarded would be paid to the government not to the claimant. To do this in addition to charging fees is like asking an assault victim to pay for his assailant to be taken to court.

I have written to my MP to make these points and to ask him to oppose any such changes being made. If you agree with me then I suggest you write to your MP. If you want to copy what I have written in this blog and send it to your MP – that is fine. I waive my copyright on this edition of my blog. You can do what you like with it.

Clients often do not realise that they have legal expenses insurance. Any insurance might include cover for legal expenses but it is most commonly found in domestic policies. Sometimes it is included in the policy and sometimes as a relatively low cost ‘bolt on’ paid for at the same time as the rest of the premium. So if you have a potential legal claim of any sort it is always worth checking your insurance. Legal protection cover usually extends to all members of a household- not just the person who took out the policy.

A difficulty sometimes arises when choosing your solicitor. You might think that you are entitled to choose your own solicitor and you would be right. Insurers seldom see it that way though and most are dedicated to forcing you to use a highly paid ‘panel’ solicitor of their choice, sometimes at the other end of the country.

In 1987 the EEC (as it then was) required member states to pass any necessary legislation to ensure the freedom of individuals to choose their own lawyer. The government of the day although publicly committed to the freedom of the individual was in reality more concerned to protect the freedom of their rich friends and supporters to make as much money as possible.

After dragging their feet for three years eventually the government introduced regulations which put the most restrictive possible interpretation on the EEC requirement; they guaranteed freedom of choice effectively only after court proceedings were commenced. A person determined to choose their own solicitor would be permitted to do so only after the case had started in court or tribunal and would need to change solicitors then. Understandably many people are reluctant to change solicitors at this potentially tricky stage.

Both the EC and the FSA have long regarded this as an unsatisfactory state of affairs. The FSA have sought assurances from insurers that they will allow cases to be dealt with by a solicitor of the policy holder’s choice and have had some limited success in this.

Now the European Court of Justice has clarified what is required; ‘provisions of a contract that detract from or qualify in any way the freedom to choose a lawyer will not be compliant’. The FSA has asked all legal expenses insurers to explain the steps they are taking to ensure they are compliant. Watch this space.

You may (correctly) have guessed that North West Employment Law is entirely independent and not on the panel of any insurer and you may think that accounts for my view on the subject. Even so it is difficult to conclude that the EC, the European Court of Justice and the FSA are not on the right side of this argument whatever most people might say about those institutions. After all, in the end it is not the insurer that is paying- it is you.

ACAS encourage an informal approach to grievances and in most cases it will be appropriate to make a verbal approach first. If the response is not satisfactory the grievance should be put in writing (many employers have a procedure which makes this clear). In some cases though it will be clear from the start that a grievance needs to be in writing.

The letter should set out briefly what your grievance is with information such as names of any individuals the grievance is against and any witnesses, places, times and any supporting information mentioned. The best way of doing this is to use short numbered paragraphs. The letter should not be too long or make too many different points.

The purpose is to make clear to someone who knows nothing about your situation exactly what the complaint is about. The letter does not need to spell out all the arguments in your favour or give all the evidence. Detailed arguments are for the grievance hearing. It is for the employer to investigate the grievance, provide and deal with evidence. Your job is to provide enough information to enable them to do that.

A grievance letter will seldom need to be more than two pages long. We have seen grievance letters many pages long listing well over 100 complaints. This is hopeless.

Firstly if an employee has over 100 genuine complaints they should have filed a grievance long before.

Secondly- as with so much of English law the complex and technical rules related to employment have the word ‘reasonable’ buried in them at strategic intervals. This gives decision makers (ultimately employment tribunals and higher courts) a great deal of discretion.

It is never going to be viewed as reasonable to send an employer dozens of complaints out of the blue with grievances dating back months or even years- usually with a demand that each one be thoroughly investigated.

That is not to say that events from the past cannot be raised- eg ‘I am the only one who has not had a pay rise in the last three years’.

So the advice is- don’t delay- make your complaint clear, keep it relevant and relatively brief. Also bear in mind that even if you eventually win a case at an employment tribunal- the award you get may be reduced if you have not used the grievance procedure properly.

The decision to be appealed may be a decision in response to a grievance or it could be a disciplinary decision. It could be a decision to dismiss- either for a disciplinary reason or for some other reason- most commonly redundancy.

Although as I said in my last blog ACAS encourage an informal approach- the time for informality is now past. Only an appeal letter will do.

Most of what I said about how to draft grievance letters holds true for appeals. Enough detail for a stranger to understand what it is about but not too long and keep it relevant. I think it is even more important to use short numbered paragraphs in an appeal letter so that everyone is clear.

If the appeal is against a decision not to uphold a grievance- the parts of the grievance which are still relevant (perhaps all of it) should be repeated or restated. From there on all appeal letters should follow the same pattern.

You should state why you think the original decision was wrong (eg ‘It was not my oil rig- it belonged to Transocean’ or ‘I was only trying to help my friend pay for his flat’).

You should also say if you think there was anything wrong with the way the matter had been investigated or decided- if for example only witnesses against you were questioned and helpful witnesses were ignored or if you were not given enough credit for many years of good service.

If you think a previous hearing was not carried out properly you should include this in your appeal. Previous hearings could include grievance hearings, disciplinary hearings, redundancy consultations as well as hearings such as capability reviews. If you do not think evidence was properly considered or the correct weight was not put on it you should say so. Likewise if you do not agree with the minutes of the meeting or believe you made valid points which were ignored or relevant information was withheld- you should say so.

There is quite a bit of overlap between the factors discussed above. You might find yourself listing the same or similar points more than once in slightly different ways. THERE IS NOTHING WRONG WITH THIS.

One final point to bear in mind is that the idea of reasonableness stalks appeals and other hearings which lead up to them every bit as much as anywhere else. All that is expected of your employer is that they act as a reasonable employer- this means carrying out a reasonable investigation or enquiry and making a reasonable decision based on the information reasonably available. If your employer does this (or appears to) then their decision will be accepted by an employment tribunal no matter how wrong they may be or how right you may be.