Last month saw the publication of the interim report by Lord Justice Briggs into proposed wide ranging reforms of the civil justice system. You might be forgiven if the publication of this interim report had escaped your notice, given the relatively limited press coverage which was generated at the time.
However, if the proposals set out in Briggs become reality, the ramifications for anyone involved in the employment litigation field will be immense. Quite simply, they would represent the biggest shake up of the employment tribunal system since its inception in the 1970s; bigger even than the imposition of fees.
The review by Briggs LJ was initiated in March 2015 as part of the wider Her Majesty’s Courts and Tribunals Service programme into the reform of the courts and civil procedure. The interim report is, by definition, a work in progress, but it gives a very clear steer on the direction of travel and it highlights the clear preferences which Briggs LJ has already arrived at in a number of key areas of reform.
As far as employment litigation in England and Wales is concerned, there are two key findings.
Firstly, Briggs LJ comes out strongly in favour of the establishment of an “online court”, the purpose of which would be to deal with all civil claims where the value of the claim is not more than £25,000. This value threshold would in theory encompass the vast majority of claims which currently proceed through the Employment Tribunal system. Briggs LJ proposes a three stage process, in which the involvement of a Judge would be limited to the third and final stage, with the emphasis being placed very heavily on a technology-driven, self-service resolution process and the use of non-judicial legal officers.
An online court process has much to commend it, not least, the cost and time savings which might be generated by a paperless (and in some instances, lawyer free!) system. Commentators have, however, already voiced concerns as to how the human-centric and fact-specific nature of many employment claims might be capable of effective resolution in an online, automated process. For example, a typical discrimination claim might well have a value of less than £25,000, but it might still be extremely evidence heavy, and require detailed and careful analysis of witnesses and their testimony. How could this be accommodated in an online system?
The second major impact concerns the future home of the Employment Tribunal system itself, which currently sits uneasily between the civil courts and the tribunal system proper. Although Briggs LJ does not give a definitive view on this, his clear preference would be for the Employment Tribunal system to be fully integrated within the civil court structure, a view shared by many of the current employment tribunal judiciary. The benefits of such a move would be obvious, given the fact that employment claims can, depending on the type and value of the claim, currently be heard in either the tribunals or the civil courts, thereby giving rise to additional complexity, cost hurdles and potential inconsistency of decisions.
Written responses have been invited to the interim report by the end of this month, so you haven’t got much time left if you would like to get involved and express a view on the findings and recommendations of this review. We will keep readers regularly updated on the progress of the Briggs report, however, in the meantime, it can safely be said that the future of employment litigation will look very different from what we have come to expect.