Justice will be seasoned not with mercy but with cost-effectiveness

Since justice can sometimes lead to harsh results, it should sometimes, as Portia put it in the Merchant of Venice, be "seasoned with mercy". Not so in these more prosaic times. The thrust of the Government's recently published proposals for Industrial Tribunal reform is to season justice not with mercy but with a liberal dose of cost-effectiveness which could erode the justice received by individual (usually ex-employee) applicants.

The Government's motivation for making sweeping changes to Tribunal rules cannot be criticised. Tribunals, now 30 years old, have changed out of all recognition from the informal, speedy and cheap sources of justice for employment disputes that they were originally intended to be. In the past 10 years, their case load has doubled to more than 90,000 per year. The number of legal issues over which Tribunals have jurisdiction has similarly increased. The complexity of these issues has given rise to profitable legal practices. Yet the actual changes contemplated by the Government may, in certain areas, show too much enthusiasm for limiting the number of applications heard, and too little regard for justice for the individual. The three points that will have the greatest practical impact are:

New Costs Penalty

Briefly, the proposal is that if an applicant employee refuses a reasonable offer of settlement and obtains an award at the hearing that is equal to or lower than the offer, then, despite winning the case, the Tribunal could order the applicant to pay the legal costs of the employer (plus his own) from the date of the offer being made. While the rule is also meant to work the other way round, in practice it will put applicants at a severe psychological (and financial) disadvantage in any proceedings.

At the moment, it is often difficult enough as a dismissed employee, with no income, to bring proceedings against a potentially hostile ex- employer with greater resources, who may not hesitate to draw out proceedings for tactical and financial reasons. This new rule could deter many proper claims from being litigated at all. Unscrupulous employers will routinely make scandalously low offers to put pressure on applicants. The fact that, increasingly, employers are taking expensive legal advice will ironically be in their favour, since the applicant's potential costs bill will be ever higher. Employers will, no doubt, point this out in negotiations.

The absence of any limit on the new costs penalty further weakens the position of applicants. From the proposal's current wording, it could be realistic for an applicant (having rejected an offer of pounds 7,500) to win his case and be awarded unfair dismissal compensation of pounds 7,000, only to walk away with nothing but a debt of more than pounds 5,000 in legal fees.

Penalty for failure to appeal

There is a proposal to give Tribunals discretion to cut compensation otherwise due if the applicant did not use an in-house appeals procedure before lodging his unfair dismissal claim. Currently, a failure to appeal in-house is not penalised as a failure to mitigate loss since, in many cases, it has no realistic chance of success and is therefore a waste of everyone's time and effort.

Now, applicants could be obliged to go through a procedure, despite its often futile nature, to safeguard their legal position. Forcing this on employees may, in fact, entrench hostilities, with the result that employees are more determined than ever to have "their day in court". At the very least, justice may not be seen to be done if an applicant's proper remedy is limited simply for a failure to jump through a procedural hoop.

Again, practical realities reinforce this. Employers have a free hand in drafting their appeals procedures and often impose very short deadlines for (usually written) appeals to be made. Unscrupulous employers could take advantage of this, knowing that dismissed employees are often not sure of their rights and usually cannot obtain immediate legal advice. Although an employer may potentially be penalised for failing to facilitate the use of an appeals procedure, in practice the employer's duty will simply be to state that the procedure is there to be used.

New Compromise Agreement Signatories

The Government proposes to extend sources of advice for compromise agreements (where an employee may waive all rights), by relaxing the qualification requirements for advisors so that any independent person with insurance can conclude these agreements. Although this, quite rightly, breaks the current lawyer monopoly on officiating in these circumstances, by not limiting the scope of advisers to those recognised to have some expertise (eg trade union officials, CAB or law centre workers), this may lead to a poor quality of advice for individuals in the future. Employees may well find they have waived their rights for a pittance, having been advised to do so by someone with little or no legal training who is paid a fixed- fee-per-compromise agreement (and thus has financial interest in settling as many as possible).

The author is an associate of Boodle Hatfield and head of its Employment Group.

Suggested Topics
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebookA unique anthology of reporting and analysis of a crucial period of history
News
people
News
Justin Bieber performing in Paris earlier this year
people
Arts and Entertainment
Martin Freeman and Lauren O'Neil in Jamie Lloyd's Richard III
theatreReview: The monarch's malign magnetism and diabolic effrontery aren’t felt
Arts and Entertainment
'Molecular Man +1+1+1' by Jonathan Borofsky at Yorkshire Sculpture park
tv
News
Glamour magazine hosts a yoga class with Yogalosophy author Mandy Ingber on June 10, 2013 in New York City.
newsFather Padraig O'Baoill said the exercise was 'unsavoury' in a weekly parish newsletter
Extras
indybest
News
people'She is unstoppable', says Jean Paul Gaultier at Paris show
Sport
Alexis Sanchez and apparently his barber Carlos Moles in Barcelona today
football
Arts and Entertainment
Miley Cyrus has her magic LSD brain stolen in this crazy video produced with The Flaming Lips
video
Arts and Entertainment
In his own words: Oscar Wilde in 1882
theatreNew play by the Oscar Wilde's grandson reveals what the Irish wit said at his trials - and what they reveal about the man
News
people
Arts and Entertainment
Unless films such as Guardians of the Galaxy, pictured, can buck the trend, this summer could be the first in 13 years that not a single Hollywood blockbuster takes $300m
filmWith US films earning record-breaking amounts at the Chinese box office, Hollywood is more than happy to take its lead from its new-found Asian audience
Independent
Travel Shop
the manor
Up to 70% off luxury travel
on city breaks Find out more
santorini
Up to 70% off luxury travel
on chic beach resorts Find out more
sardina foodie
Up to 70% off luxury travel
on country retreats Find out more
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

HR Advisor - 6 months FTC Wimbledon, SW London

£35000 - £40000 per annum + Benefits: Ashdown Group: HR Advisor - 6 Months Fix...

IT Manager - Tolworth, Surrey - £40,000

£37000 - £40000 per annum: Ashdown Group: IT Manager - Tolworth, Surrey - £40,...

Project Support Assistant - Hampshire - up to 40K

£25000 - £40000 per annum + 23 days holiday Pension Scheme: Deerfoot IT Resour...

Foundation / Year 1 Teacher - Long Term - Salford

£90 - £130 per day + competitive rates, pension scheme: Randstad Education Man...

Day In a Page

The true Gaza back-story that the Israelis aren’t telling this week

The true Gaza back-story that the Israelis aren’t telling this week

A future Palestine state will have no borders and be an enclave within Israel, surrounded on all sides by Israeli-held territory, says Robert Fisk
A History of the First World War in 100 Moments: The German people demand an end to the fighting

A History of the First World War in 100 Moments

The German people demand an end to the fighting
New play by Oscar Wilde's grandson reveals what the Irish wit said at his trials

New play reveals what Oscar Wilde said at trials

For a century, what Wilde actually said at his trials was a mystery. But the recent discovery of shorthand notes changed that. Now his grandson Merlin Holland has turned them into a play
Can scientists save the world's sea life from

Can scientists save our sea life?

By the end of the century, the only living things left in our oceans could be plankton and jellyfish. Alex Renton meets the scientists who are trying to turn the tide
Hollywood targets Asian audiences as US films enjoy record-breaking run at Chinese box office

Hollywood targets Asian audiences

The world's second biggest movie market is fast becoming the Hollywood studios' most crucial
Grindr founder Joel Simkhai: 'I've found love on my dating app - and my mum keeps trying to hook me up!'

Grindr founder Joel Simkhai: 'I've found love on my dating app'

Five years on from its launch and Grindr is the world's most popular dating app for gay men. Its founder Joel Simkhai answers his critics, describes his isolation as a child
Autocorrect has its uses but it can go rogue with embarrassing results - so is it time to ditch it?

Is it time to ditch autocorrect?

Matthew J X Malady persuaded friends to message manually instead, but failed to factor in fat fingers and drunk texting
Westminster’s dark secret: Adultery, homosexuality, sadomasochism and abuse of children were all seemingly lumped together

Westminster’s dark secret

Adultery, homosexuality, sadomasochism and abuse of children were all seemingly lumped together
A History of the First World War in 100 Moments: Dulce et decorum est - a life cut short for a poet whose work achieved immortality

A History of the First World War in 100 Moments

Dulce et decorum est: a life cut short for a poet whose work achieved immortality
Google tells popular music website to censor album cover art in 'sexually explicit content' ban

Naked censorship?

The strange case of Google, the music website and the nudity take-down requests
Howzat! 8 best cricket bats

Howzat! 8 best cricket bats

As England take on India at Trent Bridge, here is our pick of the high-performing bats to help you up your run-count this summer 
Brazil vs Germany World Cup 2014 comment: David Luiz falls from leader figure to symbol of national humiliation

David Luiz falls from leader figure to symbol of national humiliation

Captain appears to give up as shocking 7-1 World Cup semi-final defeat threatens ramifications in Brazil