Although we are only three months away from the General Election – and despite the suggestion that this Parliament has become a ‘zombie parliament’ and run out of steam – the Government continues to look at areas of employment law to reform. There are many areas one could suggest the Government turns its attention to, but the one it has settled on, for now, is the tricky and contentious area of postponements of employment tribunal hearings.

Shortly before putting the finishing touches to this issue of ELA Briefing I received an email alert from ELA informing me that the Government was putting a proposal to amend the tribunal rules of procedure to consultation. The proposed amendments would limit the number of postponements that a party could be granted to two per case. A third postponement would only be granted in exceptional circumstances and the amended rules would apply to all types of hearings. Therefore preliminary and final hearings would be caught, as well as adjournments that result in the relisting of the hearing.

The amended rules will also oblige tribunals to consider making a costs award against the party seeking the postponement, if it is made at short notice. That would be the case even if there were exceptional circumstances justifying the postponement. Short notice will be defined as less than seven days before a hearing.

I do not have a settled view about the merits of these proposals and will await the deliberations of ELA’s Legislative & Policy Committee, which will no doubt respond and put together a thorough response. What struck me as curious about the proposals were two things: (a) the basis upon which they were being made; and (b) the focus of the likely impact they would have.

The consultation document rightly identifies that postponements can be frustrating for the party on the receiving end and can lengthen the process through to resolution. It may also mean that additional costs can be incurred. In support of the proposal, however, what is said is that ‘in the two-year period to 31 March 2013, there were approximately 67,750 postponements of ETs’. While this may be true, why is the Government relying upon old figures? Tribunal fees were introduced four months after that date. As we know, there has been a reduction in tribunal claims of somewhere between 70 and 80% since, with a consequential freeing up of the system. If one is relying on figures that are so out of date, is the problem of postponements one that still needs to be fixed?

The second issue is one of impact. According to the consultation document, ‘the current proposals have Regulatory Policy Committee confirmation that the measures are a low cost to business’. No doubt ‘business’ will be pleased, but it does make one wonder about the impact on individuals, who are perhaps already feeling the strain of tribunal fees.

In December we had the High Court’s decision on the judicial review challenging tribunal fees. While the decision went against UNISON, there was a clear recognition of the effect fees have had on individuals thinking of bringing a tribunal claim. The Government had promised there would be a review of fees last autumn and has repeated its intention to undertake one since. It has been coy about the timing of it and, with an election only months away, one wonders if it will happen before then.

Part of the best practice of employment law is having a proper mechanism by which rights can be enforced. If time can be found to debate and consult on the issue of changes to tribunal rules regarding postponement requests, surely time can be found to consider the much more important issue of access to justice and the impact of tribunal fees.

Alex Lock, DAC Beachcroft LLP