The recent comments of Lord Justice Mummery of the Court of Appeal made in relation to the employment tribunal service (ETS) are to be welcomed, says the Association of Recruitment Consultancies (ARC). It is understood that LJ Mummery, previously president of the Employment Appeal Tribunal, in the course of delivering a judgment also delivered a critique of the ETS saying amongst other things
“One area of debate is about cases of little or no merit, but considerable nuisance value. All are agreed that they should be cleared out of the system as soon as possible. They should not be allowed to take up a disproportionate amount of time in the ET or cause the other party to incur irrecoverable legal costs and loss of valuable working time.”
The ARC has urged the government to change the rules for making claims to ETs to rule out the “blackmail effect” that arises particularly where a claim is vexatious or without proper foundation.
Claims currently are issued regardless of merit, and all that is required is for the claimant to apply online supported by a simple statement. ARC argues that whether the case has merit or not is not considered early enough in the process. 90% of potential claims resolved through ACAS involve a pay out by the employer yet the number of successful cases involving pay out at a full hearing is significantly lower. Further evidence from lawyers indicates that many employers are wary of recommending strike out applications for fear of failure given that the current balance is tipped too much in favour of the claimant. The cost of fighting any claim is not insignificant. Consequently it is widely regarded by employers that it is cheaper to pay out rather than incur the cost and hassle of fighting a claim.
Adrian Marlowe, chairman of the ARC said, “This is unfair for employers of those who genuinely feel wronged yet have no proper basis for a claim, and it is a charter for abuse by unscrupulous claimants, and Lord Justice Mummery has hit the nail on the head. Getting the procedural rules right to clear out cases of little or no merit at the earliest possible stage is as important for employers as it is for recruitment consultancies that can also face ET claims from agency workers. With the likelihood of claims increasing, not just due to the ongoing economic position, but also due to the introduction of the Agency Workers Regulations, with both hirers and agencies facing the potential of claims through the ETS from 1st October 2011, it is crucial that this issue is addressed promptly. The government should bite the bullet on this aspect sooner rather than later by setting up criteria to stop unmeritorious claims being issued, or being allowed to proceed, in the first place. Workers with genuine claims would not be affected.”
Since the ARC raised its campaign with government last year there has been a formal consultation on ET procedural issues Resolving Workplace Disputes – Public Consultation, which closed 20th April 2011 and a government response is awaited.