Not content with drastically restricting workers' access to Employment Tribunals and introducing a punitive 'costs regime', New Labour are now intent on restricting the right of appeal to the Employment Appeal Tribunal.

Employers now resort to using solicitors and barristers when cases go to Tribunal, with the result that UNISON now employs Thompson Solicitors to take on all cases, with the result that most cases are not taken on. Previously, when Personnel Officers for the company appeared, TU Regional Officers presented the union member's case.

One example of New Labour's lying agenda is its claim, in the 'consultation' document that only in 1 in 200 Employment Tribunal cases are costs awarded against the Applicant. Of course this is true, but the lie lies in the fact that thousands of workers are put off making an application, or withdraw an application, because the solicitor for the employer threatens to bankrupt them with costs. We have had numerous such examples where we have won thousands of pounds in damages, but the employer's solicitors nearly frightened the Applicant into withdrawing the case. Below is our response to the 'Consultation' Document.

Please submit your own response to:
 http://www.dti.gov.uk/er/EAT_rules_consult.htm
(in Labour Research there is an error in the web address) and try and hassle your union executive to doing something since the TUC carthorse has not yet awoken.

Tony Greenstein
Secretary - Brighton & Hove Unemployed Workers Centre

Overriding objective
Question 1: Do you support the introduction of an overriding objective for the EAT to deal with cases justly in the way defined by the proposed rule 2A?

We have no objection to an overriding objective being introduced, but do not believe that it will have any effect. Section 98 of the Employment Rights Act 1996 already enjoins tribunals to deal with cases in accordance with ‘equity and the substantial merits of the case’ but there is no evidence that Tribunals do anything other than pay lip-service to this clause.

Documents to be provided to EAT by appellant

Question 2: Do you agree that it would be appropriate for an appellant, in initiating an appeal, to be required to provide the EAT with copies of the claim and (if any) response that were before the Employment Tribunal?

It is wholly unnecessary for an Appellant to have to provide such documentation at the beginning of an appeal and is likely to make the initial stage more cumbersome and time consuming. Where a case is ‘sifted’ and goes forward to a preliminary hearing, the IT1 and IT3 (i.e. claim and response) already have to be provided.

Time period for initiating an appeal

Question 3: Do you agree with the proposal that in future the 42 day period for initiating an appeal should start to run from the date on which the judgment, order or direction subject to appeal is made by the Employment Tribunal? If not, what other date do you consider it should run from?

No – this change is wholly pernicious. The system at present, whereby the time runs from the date on which Extended Reasons of the Employment Tribunal are sent out makes sense. A party which does not know the reasons for a decision can hardly be expected to prepare an appeal. The fatuous argument that the time limits are generous compared to those in the civil courts entirely misses the point that Tribunals are not supposed to be part of the Courts system, access to which is extremely difficult for plaintiffs who lack the financial means. This is yet another attempt on the part of the Government, following the ‘reform’ of the Employment Tribunal Rules & Constitution, to make access to Employment Tribunals more difficult for those who are not rich, who cannot afford solicitors and counsel and who often find it difficult to obtain even the most basic advice. As one of the very few agencies who do offer such advice, we are overwhelmed with people wanting advice, often referred to us either by the Employment Tribunal Offices themselves or ACAS. If there is a need for reform it should be on the basis that the time for appeal should run from RECEIPT of Extended Reasons, not from the date of decision.

Disposal of meritless appeals

Question 4: Do you agree that the procedures for “weeding out” meritless appeals, or meritless grounds of appeal, at the outset should be improved, as proposed in this consultation document, to achieve greater efficiency?

The weasel word in the above question is ‘improved’. The real meaning of this sentence is ‘How can we reduce the number of appeals?’ There is already a very effective weeding out process. An appeal is first sifted, to see if it has merit and is based on a point of law. There is then a Preliminary Hearing at which a tribunal of three, including a judge, decided whether the Appeal has any merit. We can see no evidence that this is ineffective. The question talks about ‘efficiency’ when what is meant is really how to restrict access.

Question 5: Do you consider that, when a suitable legislative opportunity arises, a system of “permission to appeal” should be introduced in the EAT, akin to that which operates in the civil courts? Or would it be sufficient for the EAT to continue to rely on rules 3(7) to (10) – as amended in line with the proposals set out in this consultation document, if accepted – to achieve the “weeding out” of meritless appeals, or meritless grounds of appeal, at the outset?

As we have already explained, the Tribunal system was never meant to be akin to the civil courts. They are creatures of Statute and were intended for the unrepresented applicant. The proposals which are being put forward would put unrepresented claimants at an even further disadvantage than that which they experience already. They are wholly unnecessary. The present system works, it does ‘weed out’ appeals which have no chance of success but on the other hand doesn’t prevent those who are not lawyers from being able to mount an appeal. A formal ‘Leave to Appeal’ procedure would completely negate the purpose and intent behind the formation of Employment Tribunals. These proposals are yet one more step on the road to making Employment Tribunals the plaything of big business. No doubt New Labour will call them ‘modernisation’ but actually they take us back to the pre-1971 days when it was, ironically a Conservative Government which gave most workers access to Tribunals if they were unfairly dismissed.

Temporary restricted reporting orders

Question 6: Do you agree that provision should be introduced for temporary restricted reporting orders to be made, as proposed in this document, to prevent reporting by the press of certain cases involving allegations of sexual misconduct or the commission of sexual offences, or disability discrimination, to cover the period between the presentation of an appeal and any consideration of the making of a full restricted reporting order?
We have no objection to this amendment.

Costs

Question 7: Do you agree that the provisions relating to the awarding of costs in EAT proceedings should be revised in line with the proposals in this consultation document? If not, how should the proposals be modified?

We are wholly opposed to this provision. The ‘consultation document’ misleadingly pretends that this is a minor amendment because only .5% of claimants have costs awarded against them at Employment Tribunal. This is proof of the old adage that there are lies, damned lies and statistics. Yes costs awards are still, thankfully, quite rate. However it is our experience, and we have considerable experience to back this up, that solicitors for Employers almost invariably threaten Applicants with costs unless they withdraw their claim.

We will give you just one example to back this up. A Ms T, a young drama teacher was sacked without notice, despite having been told at interview that she should give a term’s notice. The Employer claimed she was ‘self-employed’ because that is what her contract said. When she filed an IT1 the solicitors for the Employer immediately threatened her with costs and stated that they had already incurred costs of over £2,000. She was on the brink of withdrawing when she came to see us. Six months later, and after three separate offers, the Employer offered her the original term’s notice pay.

So when you put forward misleading statistics, maybe you would also put forward a statistic which shows how many potential claimants have withdrawn their applications because of the threat of costs. And you could also put forward another statistic showing how many solicitors and Employers now threaten potential Applicants with costs if they proceed with their application.


Tony Greenstein
Employment Advisor – Brighton & Hove TUC Unemployed Workers Centre