Employers and employees will be encouraged to resolve disciplinary and grievance issues themselves, using a third party (for example a mediator or an arbitrator) to help resolve the problem, ending up in an employment tribunal as a very last resort. The revised Acas code of practice on disciplinary and grievance procedures will become even more important as failure to follow its provisions may lead to a 25 per cent reduction or increase in compensation.
Other changes under the Employment Act 2008
Other changes resulting from the Employment Act 2008 include:
* technical matters relating to the appointment of the President of the Tribunals and lay members,
* removing employment judges’ discretion not to issue a default judgment in certain circumstances,
* providing that, where electronic communications are used in hearings, and oral evidence is given, the public must be able to see and hear all parties to the communication,
* clarifying provisions on the withdrawal and dismissal of proceedings,
* automatic dismissal of proceedings where the parties to an Acas settlement have confirmed in writing their understanding that the proceedings covered by the settlement will be dismissed and the claimant has withdrawn the claim,
* enabling an employment judge to review certain default judgments on his own initiative,
* enabling an employment judge sitting alone to hear Stage 1 Equal Pay claims based on equal value.
No major developments are expected in the area of compromise agreements. Any further changes are likely to occur on a piecemeal basis by way of case law.
Further legislation governing tribunals generally (not just employment tribunals ) are already underway. Some aspects of The Tribunals, Courts and Enforcement Act 2007 come into force in April 2009 and some are already in force. Although the main provisions of the Act do not directly affect the employment tribunal system, the following changes may be of interest:
* Unification of tribunals under a single organisation with a simplified structure of two tiers and the creation of the post of Senior President which will provide the tribunals judiciary with clear leadership and a single voice.
* Creation of a hierarchy of two new tribunals, the First-tier Tribunal which will be a superior court of record and generally will have appellate functions, and the Upper Tribunal. The First Tier and Upper Tribunal system will start on 3 November 2008 for tribunals dealing with such matters as social entitlement, health, education and social care, taxation and land, property and housing. The new system does not directly concern employment tribunals and the Employment Appeal Tribunal (EAT)which will be separate from the First Tier and Upper Tribunal respectively although there will be close links between them.
* Abolition of the current requirement for a tribunal award to be registered in the County Court (or High Court) if it has to be enforced.
* Renamed employment tribunal chairmen employment judges.
Other possible future developments in the courts and tribunal system generally may result from EC Directive (2008/52/EC) on mediation in civil and commercial disputes. The Directive requires all Member States to simplify and improve access to justice by promoting mediation as a method of settling disputes. The Directive must be implemented by 21 May 2011. Radical changes resulting from the Directive are unlikely in UK employment matters for a number of reasons:
* There is already an increasing emphasis on mediation in the UK which pre-dates the Directive.
* The measures apply to cross border disputes (however, there is nothing to prevent a Member State choosing to apply provisions internally).
* The Directive should apply in civil and commercial matters and not to 'rights and obligations on which the parties are not free to decide themselves under the relevant applicable law'. Such rights and obligations are particularly frequent in family law and employment law.
From CIPD Sources