by Laurie Anstis on February 1, 2011
At page 46 of “Resolving Workplace Disputes” the government proposes the addition of “legal officers” to handle general interlocutory work, for instance, dealing with applications for further information, adjournments, listing and amendments to pleadings.
This is on the basis that “employment judges spend roughly up to a quarter of their time undertaking interlocutory work”, and they should freed up “to concentrate on tasks that do require their particular expertise” – which presumably means hearing cases.
The idea that “employment judges spend roughly up to a quarter of their time undertaking interlocutory work” is a slightly odd way of putting things, as it presumably also means that no employment judge spends more than a quarter of their time undertaking interlocutory work. It would be interesting to see the statistics behind this statement.
While this is presented as a matter of proportionality, and saving expense, there are many in the profession who would welcome this as possibly giving rise to a speedier approach to interlocutory matters.
Three options are given for the proposed “legal officer”: (1) an experienced administrative officer, (2) a lawyer, or (3) a more junior level of judge.
I am not aware of any other court or tribunal that has adopted a similar approach, but not had the role held by a judge of some description (please let me know in the comments if there is one). Whilst many tribunal administrators are extremely able, sensitivities concerning the right to a fair trial would suggest that all significant decisions ought to be made by a judge of some kind. While issues around, say, postponements and amendments may seem to be technicalities, they can often determine the outcome of a case.
There seems little scope for significant costs savings by the introduction of a junior judge, given the likely salary and elaborate (and costly) recruitment procedures that would be necessary. If the legal officer were a lawyer, there would still be human rights and constitutional issues in having a individual making essentially judicial decisions without being subject to the full safeguards and procedures that go with a judicial appointment.
It is also worth bearing in mind that some of the tribunal offices are quite small, and there may not be sufficient interlocutory work for a dedicated judge or lawyer – at least on a full time basis.
That leaves the question of the experienced administrator. I can see there being scope for building further administrative decisions into the employment tribunals’ rules of procedure. As is noted in the consultation document administrative decisions are already made on whether or not to accept ET3s, and it is not too great a step to extend this to, for instance, issuing orders in cases where there had been no objection received under rule 11(4). Any “super-administrator” might also have a role in reviewing more complex applications and making recommendations on them to an employment judge – taking a more active role in assisting with applications than has previously been the practice.
Finally, a couple of other legal bloggers have been turning their attention to these proposals. Daniel Barnett considers the proposal for employment judges to sit alone in more cases here, and David Campion considers the proposals as a whole here.