Lawyers trade blows with MPs over ACAS conciliation scheme today

A panel of emplyment lawyers have traded blows with MPs today over controversial plans to introduce a new formulaic scheme involving, ACAS forms and prescribed deadlines.

Early compulsory conciliation, as proposed in the Enterprise and Regulatory Bill, will not ease the burden on tribunals or make the resolution of employment disputes easier, a group of MPs heard this morning.

Firstly, a panel of employment experts were keen to contradict the assertion in the bill that that employment claims were rising.

John Morris, senior partner at Carlisle firm Burnetts and part-time employment judge since 2000, said this was not supported by evidence. Statistics provided at a recent meeting with ACAS and the Tribunals Service showed that the number of tribunals had fallen year on year, except for multiple claims, equal pay and airline disputes. The other two employment law specialists on the panel, Stephen Miller, of McRoberts, and Simpson Millar’s Joy Drummond, agreed.

Responding to the suggestion by Iain Wright, Labour MP for Hartlepool, that “everybody seemed to agree that early conciliation was a good idea”, Drummond said the difficulty was not so much on the principle – including making the step mandatory – but in the method proposed in the bill. As currently drafted, she said, the proposed rules were “unnecessary complicated, would lead to more litigation, more costs and management time for employers, not to mention placing additional hurdles in front of claimants with a valid claim”.

Drummond said the new rules would replace the current process involving one form within one time limit, which the tribunal sends to ACAS for possible conciliation, with two forms and two different time limits. “I can see all sorts of problems with that, both evidential and legal,” she commented.

She told MPs that the now-repealed and much-maligned disciplinary and grievance procedures that had to be followed before a claim could be brought to a tribunal and generated satellite litigation, would “look like a picnic” in comparison.

The panel of experts agreed with Andrew Bridgen, Conservative MP for West Leicestershire, that the tribunal procedure had become more complex, but ascribed this to the fact that the law had become more complicated.

She accepted that small businesses had particular problems, “but in my experience the people who are most in needs of basic employment rights are often the most low paid, and they tend to be employed by small businesses”.

“Small businesses are not always angels,” she went on. “As an employer you have responsibilities – yes, that has to be balanced against being able to run a business and to hire people, but one of my fears with this bill is that in trying to encourage small businesses to employ it will lay traps for unsuspecting employers.”

Instead, she asked: “Is it not more responsible for the government to educate businesses about the traps and how they should behave rather than participate in and legislate on the basis of a myth?”

Drummond also criticised an amendment tabled earlier this week on protected offers and settlement agreements, saying it contained major flaws: their narrow scope – unfair dismissal – and the introduction of a test of ‘improper’ action for which there was no definition in employment law.

Julian Smith, Conservative MP for Skipton and Ripon, said he felt as if he were “part of a Grimms fairytale with the employers being cast as the big bad wolf; it is highly biased evidence from many of you”.

The committee is expected to report by 17 July.

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How to deal with serial employment litigants

The EAT has come down on a serial vexatious litigant, who had started 31 sets of employment tribunal proceedings  over 28 years like the proverbial tonne of bricks.

Most employment lawyers have encountered serial litigants in the tribunal. I for one once found myself in a room with 10 other Barristers all trying to strike out a claim against the same Claimant. To defend in such circumstances costs in legal fees and in time and so many companies will simply settle for not an insubstantial sum.

Anthony Bentley, who claims in his CV to be a qualified photographer and to have been an entertainer, issued proceedings for age discrimination and, in some cases, disability discrimination, in tribunals across the country, including Manchester, Exeter, Sheffield and London. 

The EAT said that Bentley would either apply for a job or inform the potential employer that he was available for work. When he did not receive a job offer, he would issue proceedings. He attended no hearings and none of his claims, all made between 3 June 2009 and 29 September 2011, was successful.

The EAT said it has imposed the little known, indefinite ‘restriction of proceedings order’ on Bentley under section 33 of the Employment Tribunals Act 1996. This bars him from starting or continuing any proceedings before an employment tribunal or the EAT without the EAT’s permission.

Section 33 of the Employment Tribunals Act provides in subsection 1:

“If, on an application by the Attorney General… the Appeal Tribunal is satisfied that a person has habitually and persistently and without any reasonable ground—

(a) instituted vexatious proceedings, whether in an Employment Tribunal or before the Appeal Tribunal, and whether against the same person or against different persons; or

(b) made vexatious applications in any proceedings, whether in an Employment Tribunal or before the Appeal Tribunal,

the Appeal Tribunal may, after hearing the person or giving him an opportunity of being heard, make a restriction of proceedings order.” 

The EAT was drawn to the way in which proceedings such as this, and parallel proceedings in other jurisdictions, had been dealt with as described in the relevant cases.  

The EAT considered  H M Attorney General v Barker [2002] SCR 1, which was dealing with a civil proceedings order under section 42 of what is now the Senior Court Act 1981, Bingham CJ, as he then was, said as follows:

“The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernable basis); that, whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant, and that it involves an abuse of the process of the Court, meaning by that a use of the court process for the purpose or in a way which is significantly different from the ordinary and proper use of the court process […].”

The EAT considered that this applied to Mr Bently, who had made numerous 'misconceived' claims and despite being warned had not curbed his propensity to make further similar claims.

The type of vexatious behaviour found in an employment context was further described by Rimer J, as he then was, in the case of H M Attorney General v Roberts [2005] All ER (D) 138.  At paragraph 6 of his Judgment he said as follows:

“Most cases of allegedly vexatious litigants, as Lord Bingham there points out [in a reference to Barker], concern repeated claims or applications in respect of one particular matter by which the litigant has become obsessed, commonly involving the same defendant or defendants.  In the employment law field this is a less common feature.  Instead, what is commonly seen is the making of repeated applications of a like time to employment tribunals, usually against different respondents but founded on the like basis.  In this case, the pattern of Mr Roberts’ repeated applications to employment tribunals is that they allege a discriminatory refusal to give him a job for which he has applied on the alleged ground of his trade union membership and connections.  The Attorney General knows of at least 24 applications he has made to employment tribunals and, with some exceptions, the respondents are all different.  This feature is, however, no bar to a case being made out under section 33, as of course section 33(1)(a) makes plain.”

The EAT believed that description, accurately fits the conduct and the patterns of conduct of Mr Bentley in that, 'he applies for a job or for work and alleges age and/or disability discrimination on no basis other than that he was not successful in his application'.

By Charles Price, A Direct Access Employment Law Barrister

Rumours of quick settlements for dismissed workers

'The Sun' newspaper has been first to pick up on Vince Cable's plan to allow bosses to make quick cash payments to agreeable employees rather than fight protracted unfair dismissal cases.

Without more detail it simply sounds like the existing system where parties in a dispute settle their dispute - not quite revolutionary!