10/10/2022

Roadmap for Industrial and Fair Employment Tribunal

On 5 October 2022, Northern Ireland President of Industrial and Fair Employment Tribunal presented what he called “Roadmap for NI Industrial and Fair Employment Tribunals” to the Employment Lawyers Group.

The President provided context to his talk in that he criticised the delays in Tribunal processes; and increasing complexities of cases.

He used the opportunity to urge parties (both Claimants and Respondents) to apply for Deposit hearings in appropriate cases where they can support an application that the case has little reasonable prospects of success. The President also asked Users to increasingly accept oral judgments and not apply for written ones and in cases where there is a delay in issuing a judgment to chase up the Tribunal.

In his view it has come far from what Lord Denning had warned against i.e. ‘tribunal should never become happy hunting grounds for lawyers.’ To turn it around the President wishes to introduce ‘Judicial Mediation.’

Presidential Guidance will be issued setting out how judicial mediation will operate in Northern Ireland but said it will mirror schemes currently in place in England & Wales / Scotland. Presidential Guidance Rule 3 – Alternative Dispute Resolution

Some key points to note:

In January 2023, the President intends to engage with ‘Regular Tribunal Users’ on Scheme but it will be very similar to Great Britain and it will not be re-invented unless there is a reason for doing so.

All 8 full time Judges will be trained by way of a four day training course in January 2023 with roll out planned for the first set of judicial mediations to start in April 2023. The new Vice President (who will be revealed next week) will have oversight of the Judicial Mediation.

Initially 30 cases will be selected for judicial mediations. In first year of the Scheme, it will be limited to parties that are legally represented but going forward that he anticipates that it would widen to cover all appropriate case.

Generally:

1. Parties would have to agree to it and be willing to move towards a settlement; it is not appropriate for cases when parties are ‘at daggers’ and want to fight case at Hearing.

2. Parties will be asked Y/N question, at case management stage, if they are interested in mediation. Later a question maybe included about judicial assessment which he also hopes to introduce. (England & Wales Presidential Guidance  Rule 3: Protocol on Judicial Assessments)

3. There is no charge for the mediation which will allow parties access to participate in a mediation facilitated by a trained judge. If mediation is unsuccessful, then that Judge will not be involved in case.

4. All mediation notes will be filed separately from the Tribunal case file. If the case proceeds to a full Hearing, the Hearing Judge will not be aware of mediation so it will not taint the full hearing in any way. Parties should not refer to it.

5. If mediation successful, the LRA will be called in to draw up the binding agreement.

6. Mediation will be listed for 1 day or perhaps half day.

7. It would be appropriate in cases such as:

• those listed for over 3 days;
• sensitive issues in which parties do not want publicity (e.g. media persons or reputational fears);
• more appropriate for cases where employment relationship is continuing.
• high value cases;
• (for 1st year) where parties are legally represented.

When asked if this would be ‘mediation’ as we know the term – i.e. parties reach an agreement facilitated (not forced) by a Judge – or would it be more directional, he implied that perhaps it maybe more the directional type of mediation.

The 45 minute talk was certainly colourful and President was very blunt in sharing some of his views. If anyone has ever appeared before him then you might know what I mean.

This has been described by some as this President’s Legacy. In England & Wales the process is supposed to have 65% success rate. We will keep Members updated on any further developments.