Say goodbye to Employment Tribunal Chairmen and to some employee representatives.
From 1st December 2007 Employment Tribunal chairmen will become known as Employment Judges. This change has been partly driven by recognition of the increasing complexity of employment tribunals and partly with a view to increasing the diversity of those applying. Such an aim, although laudable, will not, in our opinion, have such an effect. It is good news, however, that tribunal chairmen and women will in effect get promoted to the more respected and better understood job title of ‘judge’.
There have been a number of other changes to the tribunals in the last few years. The most significant was the introduction of the dreadful statutory dismissal procedures. At least we know now that these are going to be abolished but perhaps not until 2009. Another change that came into force in April this year was the banning of unauthorised representatives appearing before tribunals. It is now no longer possible for claimant representatives, who provide their services in the course of a business, to appear in employment tribunals, unless they have been authorised by the government’s new Claims Management Services Regulator.
Such representatives will not only have to pay a fee to register but will have to abide by rules of conduct. The unauthorised provision of services is a criminal offence. Only barristers, solicitors, qualified legal executives and various others providing voluntary assistance are exempt. The new provisions apply only to representatives representing claimants i.e. employees. Presumably, therefore, the government believes that employers do not require the same protection. Having read the impact assessment produced by the regulator in August i.e. some 3 months after authorisation came into force on 23rd April, we note that the Regulator notes that the main concern in the employment field is quality of advice and service. There is, however, nothing in the new regulations to address this beyond, as the regulator Mark Boleat points out, the effect on the requirement of paying £400 to register, an annual fee of £400, and ‘perhaps’ an insurance policy fee. What the regulator means is that those who only dabble in the area may be put off by the costs. However, worryingly the regulator notes that only ‘some Tribunals have taken the view that an unauthorised business could not represent a client’. Surely, if the new regulation is to be effective, no tribunal should allow an unauthorised representative to appear before it.
This new area of law was aimed at the ambulance chasing firms targeting personal injury victims with cold calls and adverts in hospitals. Such practices are now covered by the relevant code of practice. It is a good thing in that sense but given that the Country doesn’t regulate plumbers etc. one does wonder whether a general requirement to register and receive authorisation to run any business would be better. Furthermore, although this area of law has been widely publicised as preventing unqualified representatives from appearing in court, it does no such thing. This is because there is no threshold for the authorisation. All that is requested is that the person is able to run a business and fill in forms. In that regard it is rather worrying that the Regulator admits that over 90% of the initital application forms had mistakes. It is surprising that regulations covering those representing employees in tribunals take no account whatsoever of experience and training.
However, the introduction of this law will be good news for our Company clients if it reduces the number of unqualified and/or hopeless representatives. In the past we have seen a lot of very poorly advised employees bringing tribunal claims. This causes a lot of extra work which, of course, costs our Clients significant amounts of time and legal expense. The new law did not, however, affect solicitors who dabble in employment law. Inexperienced solicitors can have exactly the same effect as unqualified representatives.
The new law enables employers faced with an unauthorised representative to contact the representative involved and inform them of their duties under the law. They can also ask the Claims Management Service to investigate whether a representative is authorised and/or make representations to the tribunal that the representative should cease acting in the case.