Month: June 2024

An interesting little gem concerning employment tribunals almost passed me by – yet in many cases its implementation has the potential for considerable impact on both claimants and respondents from early next year (unless of course a new government puts paid to the currently suggested timetable).

Historically, responsibility for procedural rules within employment tribunals has been held by the Department for Business & Trade and its predecessor departments. Whereas responsibility for procedural rules in the Employment Appeal Tribunal rests with the Lord Chancellor.   Yet this is about to change.

The Tribunal Procedure Committee (“TPC”) has been preparing to take over the management of rules and procedures of the employment tribunal system, to add to its existing responsibilities for first and upper tier tribunals.  

The TPC has published a consultation paper over the rules the TPC anticipates making after the transfer of responsibility for the employment tribunal.  Buried within the technicalities of the procedure needed to complete this territorial change, is a proposal (ostensibly effective from April 2025) for an amendment to Rule 56: “to provide that case management hearings should be held in public unless there is good reason to keep them in private, in common with other jurisdictions, and in furtherance of the principle of open justice”.

So what previously were discussions, in private but before the judge, over details such as a claimant’s schedule of loss, disclosure, the list of witnesses etc among other matters, will soon be pored over by journalists and interested parties alike. 

As an agency that started our litigation PR advisory business with a high-profile employment claim over 21 years ago and has, in the intervening period, advised on countless employment-related disputes both at the High Court and before tribunals, we can readily see the potential impact of this greater and earlier transparency.  This may not always have positive effect, depending on the client’s perspective.

It seems to us that this changes the dynamics with regard to settlement. If it can become publicly known why the case is being brought, who is being called to give evidence and for what reason, the extent of disclosure required and indeed how much is being sought in terms of financial recompense by the claimants well before the claims have been tested in open court – respondents may have earlier decisions to make vis-à-vis continuing the defence or seeking to close the case down.  Does the ‘open’ principle always mean ‘justice’?  The answer perhaps lies in one’s own standpoint.  

We’d love to hear what employment lawyers think.

Meantime, if you are considering bringing (or are facing) proceedings before the employment tribunal, and wish to discuss the implications of media attention before the final hearing (and considerably earlier in the dispute than had been previously anticipated), drop us a line and we’d be happy to talk the matter through with you and your lawyers.

If anyone wishes to respond to the TPC’s consultation – be quick, it closes next Wednesday 26^th June.

By Melanie Riley

Even though votes are yet to be cast, the country appears to believe that the election is a run race and that the only question around Starmer’s rise to PM is the size of majority he will secure for Labour. Starmer’s steady hand has yet to waiver while it seems soggy Sunak has little chance of pulling it back as we enter the second half of the election campaign. Three weeks is a long time in politics…

With the manifestos now laid bare, we have seen few surprises from the two major parties and few rich pickings. Much has been made of Starmer’s background as the Director of Public Prosecutions and his real understanding of the issues facing the criminal justice system. But what exactly have he and Sunak said on plans to tackle court backlogs and legal aid? 

Labour have continued to champion an increase in prosecutors by allowing Associate Prosecutors (APs) to work on appropriate cases and encouraging a fast track of rape cases by introducing specialist courts at every crown court location in England and Wales. The kinds of ‘appropriate cases’ these APs will take on, however, have not been specified. The popular online blogger ‘The Secret Barrister’ argues that there is “literally nothing in Labour’s manifesto about the record Crown Court backlog”, with the AP proposal relating solely to the issue in the Magistrates’ Court. The Secret Barrister concludes that, “No government in history has caused as much damage to the criminal justice system, has created such appalling delays and has deliberately run up such an enormous backlog. And the official opposition don’t appear to have a clue how to address this.”

The Conservative manifesto seeks to cut the backlog by keeping open Nightingale court rooms, funding more sitting days and investing in court maintenance. Additionally, they look to continue with the digitisation of court processes, the expansion of the use of remote hearings, and to offer match funding for 100 criminal law pupillages to speed up justice for victims.  But as with all new recruits, experience takes time to build and have effect.

Labour’s ‘Hillsborough Law’ will place a legal duty of candour on public servants and authorities. The party says it will also provide legal aid to the tune of £30 million for victims of disasters or state-related deaths. On top of this, Starmer and co have set aside £5 million of their budget to appoint legal advocates to provide free legal advice and support to rape survivors across England and Wales.

On the other side of the political line, the Conservatives plan to expand the provision of legal aid at inquests related to major incidents where the Independent Public Advocate is appointed or in the aftermath of terrorist incidents, which would be widely welcomed.

What is sadly lacking from both is hard numbers in terms of investment that will be pledged to the administration of justice as a whole for the benefit of society. The public know the system is broken. The Law Society says we need an immediate investment of £11.3m for civic legal aid and the Bar Council says we need a “whole system review” through Royal Commission, which the Conservatives promised in their 2019 manifesto but which never materialised.

However, most voters will recognise there is little spare cash to be found down the back of the sofa to make this happen. One thing that would benefit the system which doesn’t cost £s is stability of the Minister for Justice position. Having someone stay in post long enough to grapple thoughtfully with the issues and offer meaningful leadership would be a welcome change.

Friday 14th June