The Department of Trade and Industry has published proposals for changes to Industrial Tribunals. The consultation paper Resolving Employment Rights Disputes invites responses by 27 September 1996. The proposals would require an Act of Parliament and the consultation paper includes a draft of the legislation.
The proposals follow the Green Paper of 1994. It was the cost of the IT system that prompted Government concern. Spending had increased significantly, but this was due to a rising number of cases rather than an increase in costs per case.
Greater demand for ITs was not matched by more resources to cope. This led to longer delays. The Green Paper identified the likely causes, but avoided the obvious conclusion. More people bring tribunal cases because increasing numbers consider their employment rights have been infringed. Employers who do not recognise unions, and those who have no proper internal procedures for resolving disputes, are more likely to face claims. The significant number of cases against smaller employers reinforces this view.
Solutions
Possible solutions open to the Government include laws which encourage employers to have procedures for resolving employment disputes. Tribunal time limits could also be extended where internal procedures are followed. Bad employment practices could be deterred by increasing compensation limits.
These were never likely to be put forward by the present Government. Ian Lang, Trade and Industry Secretary, has now said that time limits will not be changed before the general election.
Instead the main thrust of the proposals is to reduce the number of cases which proceed to a Tribunal hearing, by increasing the Tribunal's powers to dismiss cases at an earlier stage. And, in a more welcome step, encouraging arbitration.
One-sided
The changes are not even-handed. Tribunals will be able to dismiss cases WITHOUT A HEARING where the employee appears to have a hopeless case. But tribunals will not have the power to dismiss an employer's defence (the notice of appearance) which shows no grounds to resist the claim.
The rules will be changed to allow a tribunal to dismiss a case DURING A HEARING where it is clear the employee's case will fail. But it cannot dismiss an employer's defence.
It is proposed to allow an employer to claim there is 'no case to answer' at an early stage. This overlooks that in unfair dismissal cases the employer puts its case first: the employee should equally be able to submit that there is no defence.
Where an employer fails to turn up, the tribunal can hear the case in his or her absence, but the employee still has to prove the case. There is no power to decide automatically in favour of the employee.
The rules will allow an employer 21 days rather than 14 to enter a defence (notice of appearance). What is needed is for this to be strictly applied, as frequently employers are allowed to put in a defence very late in the proceedings.
Sensible streamlining
Some of the proposals involve sensible streamlining. Tribunals can decide cases without hearing evidence where, on the undisputed facts, the same point has already been decided by a higher court. Cases can be decided on written evidence alone if both parties agree. Appointing legal officers to deal with procedural issues should help cut delays.
Still a tribunal?
There will be a wider range of cases where tribunal Chairs can sit alone, notably cases on redundancy payments and the right to a written statement of employment particulars. In both these areas the industrial experience of the lay members will be missed. Fortunately the Government backed away from a more widespread use of Chairs sitting alone in the face of strong opposition to this proposal in the Green Paper.
Offers and costs
The Green Paper proposed that employees should face costs if they reject an offer and subsequently get the same or less. A majority opposed this in the consultation, and there is now a more even-handed approach. Employers face paying costs if the employee offers to accept a sum, the employer refuses and the employee gets the same or more.
Internal appeals and compensation
If an employee fails to use an appeals procedure after dismissal, she or he faces a reduction in compensation for unfair dismissal if the appeals procedure was spelled out to them when they accepted the job. This seems harsh, bearing in mind how few internal appeals overturn a dismissal.
Employers face paying extra compensation if they refuse to allow an employee the right to appeal - but only if they have an appeals procedure: An employer who does not escapes this risk!
Compromise agreements
Trade unions and other advisers can now advise on compromise agreements provided they are covered by insurance against the risk of negligent advice.
Arbitration
The Government says it favours conciliation and arbitration. Moves towards arbitration are welcome, but the proposals are too cautious to result in a substantial shift away from tribunals.
Although confined to unfair dismissal cases, the Advisory, Conciliation and Arbitration Service will devise an arbitration scheme which will be activated when both parties agree in writing. The draft ACAS scheme prepared by the Government, and included as an example, envisages the same law and the same remedies as a tribunal. The only advantage is likely to be speed and informality - although there is no prohibition on involving lawyers.
A more attractive solution would involve a speedy resolution before an arbitrator who effectively acts as a final stage of appeal from the employer. The arbitrator's powers should include imposing a lesser penalty or ordering that the disciplinary hearing be re-run.
Employers and employees can agree to refer any employment or discrimination case to an independent arbitrator agreed by them, but they would have to pay the cost. This is likely to act as a deterrent. Arbitration is an attractive option, but a more imaginative approach is needed than the one the Government has opted for.
And finally...it is goodbye to Industrial Tribunals and hello to Employment Tribunals. No more 'IT', but 'ET' has landed. 
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THE MAIN PROPOSALS ARE:
change name from Industrial Tribunals to Employment Tribunalsif both sides agree, decide cases on written evidencedecide cases without a full hearing if employer does nothingdecide cases without a full hearing if case is hopelessmore cases where Chair sits aloneappoint legal officers to deal with procedural issuesoption of binding arbitrationcompromise agreements need not involve lawyerstake account of use of appeals procedures when deciding compensation.Â
IN ADDITION, NEW TRIBUNAL RULES WILL MEAN:
more time for employers to file a defence tribunals can dismiss hopeless claims before or during the hearing costs can be awarded if reasonable offer refused.