Wednesday, 11 January 2012

Kick 'em when they're down

Talk about kicking someone when they’re down.

You’ve been dismissed – unfairly you believe. Unemployment is at a 17 year high. If you can find a job and get an interview, how long before you’re asked why you left your last job?

There must be a remedy – this is the UK. We’ve led the world in delivering justice and are still, in recession, building (expensive) facilities to make London the forum of choice for those who can afford it.

And for those who can’t, who live here, who have been sacked perhaps unfairly (contrary to the law as it still is presently)?

Yes, of course you have the Employment Tribunal – you know, that forum specially created for employment disputes, accessible to all, relatively speedy, fee free.

Of course, it costs money to run. That cost inevitably rises as volumes of business increase.

The political reaction to that seems an irritable one. The focus is on unmeritorious claims. The proposal to charge what will be to many people prohibitive fees is not an exercise in self-funding, but simply turning the tap.

It’s right that the facility – for justice – should not be clogged by speculative claims and vexatious parties but raising the bar indiscriminately is not the way to eliminate them.

Costs sanctions are.

It’s been said that the machinery is already there to strike out weak cases, either way, or dispense costs warnings but the problem is that the powers are too rarely deployed. Judges simply won’t go there.

I’ve had at least three pre-hearing reviews in the last year where one (the other!) party’s case was roundly condemned but allowed to continue. In another instance a judge refused even to list a one hour application to strike out a claim that was listed for a day of what turned out, unsurprisingly, to be one-way traffic start to finish.

Most advisers will tell you that costs orders just don’t happen. I was told so very firmly by my last opponent to such an application four months ago - a couple of hours before his client was ordered to pay £5,000 for his unreasonable defence of the claim.

That was my third ET costs order in as many years but generally they’re right. Employment judges don’t use the powers they have to arrest and deter waste of resource.

But that’s where the just answer lies – not in the wholesale denial of justice to all, including those who need and deserve it.