Consultation reconsiders ET rules for when hearings should include non-legal members

A consultation has been launched (on 30 January 2023) to consider how to reframe the rules governing when and in what circumstances non-legal members should sit with an Employment Judge in employment tribunal hearings. The deadline for responses (to the Senior President of Tribunals) is 27 March 2023.

The Senior President of Tribunals has issued a consultation regarding the redrawing of rules and discretions with regard to when and in what circumstances employment tribunals, and also the Employment Appeal Tribunal should:

• conduct a hearing with just a judge presiding, or alternatively
• conduct a hearing with one or more lay members in addition to the judge.

In the paper, the Senior President of Tribunals expresses the view that it is difficult to justify some of the present distinctions operating in employment tribunals between cases which require a panel of lay members and cases which do not (see paragraph 20). Part of the aim underlying the prospective changes that are the subject of this consultation is to redraw those rules so that the discretion as to whether or not a panel is to be used is founded on a more consistent and rational basis.

Broadly speaking, the intentions underlying the redrawing of these rules will likely mean that employment tribunals will become tribunals where substantive decisions are taken by a judge alone by default, with a discretion for the judge to sit with two non-legal members. Hence the direction of travel is for fewer cases overall to include lay members.

The justification for that policy is:

• including non-legal members on the panel may often affect the length of time involved in the hearing of a case and delivering a decision or judgment:
  • time must be allowed for the members to ask questions, and to contribute to the preparation of the decision or judgment
  • listing hearings convenient for three members of a panel is often more difficult than it is for a judge alone
• the cost to the justice system of deploying members is significant.

For these reasons, the Senior President states that, as well as for the general imperative of using the resources of the tribunals efficiently and prudently, it is important that non-legal members are used only where they are needed.

The consultation paper mentions certain considerations that will not be considered as having significant weight when deciding how the rules should be reformulated:

• little weight will be given to the suggestion that a full panel is, in principle, required to give parties the assurance of a fair hearing. It cannot be maintained that there is inherent unfairness in a hearing before a judge alone
• little weight will be given to the suggestion that the involvement of non-legal members in proceedings and hearings where their presence is not required in the interests of justice in the case in hand is vital to the credibility of the tribunals.

Rather, what is important is the actual contribution that non-legal members make to the tribunals’ decisions, in the interests of justice and access to justice:

• the significance of that contribution can be difficult to gauge
• the strongest argument for deploying non-legal members is that their experience informs the tribunals’ decision-making on crucial issues. Some decisions—such as, for example, whether the adjustment that an employee requested for their disability was reasonable—are questions in which workplace experience may have a real bearing on a just outcome.

Hence, in some cases, decisions on some issues, if made by a panel, might be stronger than the decision a judge might make when sitting alone. The challenge that the consultation seeks to address is how to identify the kinds of case in which that is likely to be so.

The deadline for providing responses to them is 27 March 2023.

Responses may be sent:

• by email, to: SeniorPresidentTribunalsOffice@judiciary.uk, or
• by post, to: Shane O’Reilly, Senior President of Tribunals Office, Room C120, Royal Courts of Justice, The Strand, London WC2A 2LL.

All responses should state whether the response is from an individual or made on behalf of an organisation.

Pro Employment Law

Formed in 2017, following significant legislative changes designed to increase competition within the legal services marketplace, Pro Employment Law is a progressive set of barristers’ chambers, consisting only of experienced employment law barristers, offering a full range of specialist advisory, case management, and advocacy services directly to the public through the Public Access scheme. We supply our legal services exclusively in the area of Employment Law to clients located across England & Wales. All of the legal services we supply are covered by professional indemnity insurance with Bar Mutual.