So, what’s the big thing on the Government’s agenda?

Poverty? Global terror? IS? The deficit? The trade gap between imports and exports?

It seems to be Employment Tribunal hearing adjournments. Of all things, are ET adjournments really that important? Are they really a current scourge that is devastating our society?

Part of SBEEB¹ is designed to give ETs a power to restrict the number of times that a party can postpone or adjourn an ET hearing.

The main points are:

·    that no party should generally be allowed to postpone hearings in its case (including preliminary hearings) more than twice;

·   that applications made less than seven days before the hearing in question should only be granted in exceptional circumstances;

·   that if a postponement application made within that time is granted, the ET should be obliged to consider a costs order against the person making it; and

·   that these rules do not apply to adjournments necessitated by something done or not done by the ET or the other side or where both sides agree and the ET thinks the adjournment may lead to a settlement.

Phew.

One of the principal drivers for the proposals is stated to be the length of time that ET proceedings take. No need is paid in the paper to the shortening in waiting times likely to accompany the dramatic fall-off (off a cliff) in numbers of ET claims since the introduction of ET fees (i.e. a 70-80% fall) and the reduction in the number of cases being heard by a full panel by opposed to a Judge alone.

It seems to us that the ET rules already provide for the ET to take these steps. The wide discretions afforded to Judges by the ET rules as they stand already permit the refusal of late or repeated adjournment requests and the award of costs where the other party is prejudiced – the proposals just complicate and duplicate what is already in place.

Further, this is from a Government whose Prime Minister stated recently: “I have insisted on slashing needless regulation. We will be the first government in modern history to have reduced – rather than increased – domestic business regulation during our time in office”.

Against a wider picture of dropping ET claims, I really wonder what, apart from posturing before an election, it really hopes to achieve by this.

Perhaps, most telling, is the statistic in the accompanying consultation paper that around 80% of application requests are made by Claimants. It is therefore clearly Claimants who would be most prejudiced by this change, not employers. I suspect many of these Claimants will not be legally represented. So in practice these changes are mostly aimed at the unrepresented Claimant without the benefit of union and/or legal support. No doubt many will be fearful of adverse costs and be more likely to drop a claim for fear of the risk.

In all, it seems to be further loading of the employment law dice in favour of an employer.

¹ Small Business Enterprise and Employment Bill and not a Bond villain – currently it’s working its way through Parliament.

David Sorensen - Partner

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