By Bianca Castro >>
(31 October 2024)
Employment judges will be able to sit alone in cases unless it is not in the interests of justice to do so, according to a new practice direction issued by Sir Keith Lindblom.
The senior president of tribunals’ direction means fewer cases will be heard before the usual three-person panel consisting of a judge and lay members.
The change to the panel composition in employment tribunals states judges can sit alone, including in undefended cases, unless ‘a judge decides that, having regard to the interests of justice and the overriding objective’ a panel consist of either a judge, an employee member and an employer member.
A judge may also not sit alone if a leadership judge decides there should be two judges for training purposes. This decision is a ‘power to be used sparingly and exclusively for the purposes of training and development’.
Referring to the Employment Appeal Tribunal, the practice direction states that a case before the EAT should be heard before a judge sitting alone unless, in the interests of justice, a judge decides the EAT should consist of a judge and two appointed members.
It adds: ‘Where the Employment Appeal Tribunal consists of three people, one of the appointed members must be a person whose knowledge or experience of industrial relations is as a representative of employers, and the other appointed member must be a person whose knowledge or experience of industrial relations is as a representative of workers.’
Guidance issued by Judge Barry Clarke, president of the employment tribunals (England and Wales) and Judge Susan Walker, president of the employment tribunals (Scotland), acknowledged that factors in relation to panel composition ‘will vary from case to case’ adding that ‘practical’ factors also included members availability and delay risks if a full tribunal were to be empanelled.
It added: ‘Deciding panel composition is about whether the panel should comprise a judge sitting alone, a judge sitting with two members or, exceptionally, two judges.
‘The senior president has delegated that power to leadership judges of the employment tribunals (and which may be delegated further to HMCTS staff in listing teams). In practice, it is a deployment decision typically made very shortly before a hearing commences (sometimes the same day). It is influenced by judicial availability and resources, and by late settlements and withdrawals in other cases.’
Applications for reconsideration and matters relating to costs/expenses will always be decided by a lone judge, the guidance said.
Law Society Richard Atkinson said: ‘We support improvements introduced which maximise the ability to utilise judicial resources. However, our primary concern is to make sure that an increasing employment tribunal backlog is tackled so that workers and employers can protect their rights and access justice.
‘At its core, the Employment Rights Bill seeks to provide workers with new employment rights and remove barriers for enforcement. However, workers who are unable to access the employment tribunals in a timely manner will not be better off. If the outcomes intended by the government are to be achieved, investing in employment tribunals is paramount.’
The changes came into practice this week for all matters heard or decided on or after 29 October.
(Courtesy: The Law Society Gazette)
