Wales Employment Tribunal

WALES EMPLOYMENT TRIBUNAL

AUTUMN USER GROUP MEETINGS

JOINT MINUTES FOR:

MOLD, FRIDAY 7 OCTOBER 2016, 2PM CARDIFF, THURSDAY 13 OCTOBER 2016, 2PM

Attendance List for Mold

Present

Barry Clarke (BC) – Chair Regional Employment Judge Vincent Ryan Employment Judge Gareth Petty Director, ACAS Wales Brenda Farnham ACAS Andrew Way ACAS Gwenda Fletcher HMCTS Listing Officer, North Wales Lesley Hyde HMCTS, Operations Manager, CFT North Wales Paul Randles Volunteer, Citizens Advice, Rhyl

Attendance List for Cardiff

Present

Barry Clarke (BC) – Chair Regional Employment Judge Wayne Beard Employment Judge Sian Davies Employment Judge James Forse Senior adviser/collective conciliator, ACAS Wales Judith Kiely Chair of non-legal members’ association, Wales Katia Daw Bridgend County Borough Council Angharad Booker National Union of Teachers Jonathan Walsh Capital Law, solicitors Kellsey Logue Capital Law, solicitors Liz Frankis Citizens Advice, Newport Rhiannon Dale Hugh James, solicitors Peter Evans USDAW Stuart Atherton Peter Lynn & Partners Daniela Mahapatra NHS Wales Bethan Southcombe New Law, solicitors Joanne Chambers Correspondence clerk, Wales ET (minute taker)

Apologies

Lyndon Hobbs Delivery Manager, Wales ET Claire Jenkins Thompsons, solicitors Carys Lodwick Geldards LLP Evelyn Morgan Vale of Glamorgan Council Helen Randall Iscoed Chambers Susan James Slater Gordon, solicitors Emma Allchurch Eversheds, solicitors Jack Wellington Geldards, solicitors Laura Evans Clarkes Legal, solicitors Trudy Davies ACAS Elizabeth Marshall Iscoed Chambers Luke Menzies Menzies Law, solicitors Damian Phillips Darwin Gray, solicitors Jemma Thomas Eversheds, solicitors Eleanor Williams Equality and Human Rights Commission George Pollitt Clerksroom Chambers Chris Meyers MLM Cartwright, solicitors Andrea Thomas MLM Cartwright, solicitors Stephanie James MLM Cartwright, solicitors Elinor Jones MLM Cartwright, solicitors Michael Clarke Blake Morgan, solicitors Claire Primett NHS Wales Nick Cooksey River Chambers Daniel South South Wales Fire Helen Stevens South Wales & Gwent Police Legal Services Claire Williams South Wales & Gwent Police Legal Services Georgina Voogd Eversheds, solicitors Simon Thomas Hutchinson Thomas, solicitors

Agenda Item 1 Welcome

BC welcomed and thanked all for attending the Autumn user group meetings. He introduced other members of the panel:

 In Cardiff, the panel included two of the salaried Employment Judges in Wales (Wayne Beard and Sian Davies) and colleagues from both HMCTS (Joanne Chambers) and ACAS (James Forse).

 In Mold, the panel included Employment Judge Vincent Ryan and Gareth Petty from ACAS.

2 Presentation by Regional Employment Judge

BC gave the same presentation at the user group meetings in both Cardiff and Mold. His presentation covered seven topics: case levels in Wales ET; judicial resources; premises; the HMCTS reform programme;

2 electronic promulgation of the tribunal’s judgments; the Welsh language; and devolution issues.

Case Levels

In the six months from April to September 2016, Wales ET accepted 398 single claims and 66 multiple claims. In the same period during 2015, Wales ET accepted 253 single claims and 703 multiple claims. The 63% increase in single claims across the two periods is especially noticeable (multiple claims are, by their nature, less predictable) but it is too early to say whether this is anything other than a ‘blip’.

The current outstanding caseload for Wales ET is 3,370 cases. This includes 3,006 multiple cases (of which about 1,200 are public sector equal pay cases) and 364 single cases.

The headline figure of single claims received can mask a different trend, which is the underlying shift within single claims towards complex open track cases (such as whistleblowing and discrimination), often against public sector employers such as health boards. The number of standard track cases (unfair dismissal) and the number of short track cases (money claims such as unpaid wages) remain considerably lower than their pre- fees level. This shift in work type is reflected in the fact that, in the financial year 2015/16, and for the first time, the number of open track claims received by Wales ET was greater than the number of short track and standard track claims received.

Judicial Resources

The number of salaried judges and the number of fee paid judges remain constant, although Wales ET continues to miss Roger Harper, a salaried judicial colleague who transferred to Bristol ET in July 2016.

A more pressing concern is the reduced number of non-legal members. In 2010, Wales ET had over 100 non-legal members. By the end of 2016, mainly through retirements, this number will have fallen to 45. Assuming all members work until their compulsory retirement age of 70, and in the absence of recruitment, Wales ET will have only 32 members by the end of 2019.

Because the salaried judges tend to move from one multi-day case to another, cases are listed to ensure that the time allocated for the hearing includes sufficient time for the judge and assigned non-legal members to deliberate and then prepare and (ideally) deliver their judgment. Reserved judgments carry the risk of delay. Parties can therefore expect cases to be timetabled firmly to ensure that they can be completed with the time allocated; in this context “completed” includes the tribunal’s deliberations, and not simply the parties’ evidence and submissions.

Premises

The Cardiff headquarters of Wales ET will shortly leave Caradog House

3 and move to Cardiff and Vale Magistrates’ Court with effect from 11 January 2017. This is so that HMCTS can take advantage of a financial benefit that comes with early exit from a lease. Caradog House has been a good servant of the ET, having been our main ‘home’ in Wales for 40 years; this time next year it will be student accommodation. Wales ET will be based on the top floor of the Magistrates’ Court and will have priority use of three of the four hearing rooms situated on that floor. They will be known as hearing rooms 8, 9 and 10.

Although the new location has no dedicated waiting rooms for claimants and respondents, each hearing room has two bespoke consulting rooms (i.e. six in total), which will hopefully be sufficient. Efforts are being made to ensure that clear internal signage directs users towards the ET.

It has been agreed that the Magistrates will list cases in ‘their’ courtroom on the top floor (which is Court 7) that are not prosecuted by the CPS. This is to minimise the cultural clashes that will inevitably arise when the users of a tribunal jurisdiction are co-located with the users of a criminal jurisdiction. Non-CPS prosecutors include Companies House, Customs and Excise, Trading Standards, Health and Safety, Education Authorities, train companies, the RSCPA etc. In addition, non-CPS courts includes enforcement of fines, breaches of probation orders and the like.

BC confirmed that, at every opportunity, he will argue for a better solution for Wales ET in Cardiff. He said that he has made no secret of his preference for the ET in Cardiff to be co-located with civil, family and other tribunals.

An important consequence of the move is that the Cardiff venue will be using three hearing rooms rather than the five that were previously available in Caradog House. BC confirmed that he was looking at other venues as “overspill” when listing cases. Options presently include the Civil Justice Centre in Cardiff and Pontypridd County Court.

From time to time the pressures on listing means that a venue may have to be changed at short notice, or the hearing length of a case may have to be reduced at short notice. BC said that he would try to keep such instances to a minimum, and that the ET would write to the parties with an explanation where no other option is realistically available.

In North Wales, the main base of Wales ET continues to be Mold Law courts. The ET uses Court 3 in Mold for the first two weeks of every calendar month. Ad hoc use is made of other venues across North and Mid Wales.

HMCTS reform programme

BC highlighted several ongoing or pending consultation processes around the reform of the justice system generally and which will have a direct or indirect impact upon the ET. He encouraged all users to participate and express their views. The topics currently being consulted upon include expanding digital processes, tribunal panel composition and judicial terms

4 and conditions.

Electronic promulgation of judgments

BC explained that, in common with other tribunal regions, Wales ET would now be promulgating more judgments electronically, providing them to the parties via email in ‘pdf’ form. Judgment signatures will be scanned and attached electronically as well. Any party who wishes to receive a judgment by post can still do so, but the overall hope is to make savings on postage costs. Indeed, in recent years, there has been a steady migration of correspondence from post to email. In 2017, we will also see an electronic database of first instance ET judgments.

Welsh language

On 8 September 2016, the 9pm edition of S4C news included an interview with a Cardiff-based solicitor, who suggested that Wales ET had been unable to find a Welsh-speaking judge to deal with a case involving one of his clients.

BC had investigated the matter, both in correspondence with the solicitor concerned and by examining the tribunal’s file in case in question. He had found no evidence that the tribunal had struggled to find a Welsh- speaking judge and he concluded that the solicitor concerned had drawn an incorrect inference as to the cause of delay in listing the case for hearing.

Wales ET has two Welsh-speaking judges and five Welsh-speaking non- legal members. Wales ET understands its obligations under the Welsh Language Act and the HMCTS Welsh Language Scheme. The importance of being able to conduct hearings in Welsh is fully supported by HMCTS and the ET President. However, there is no complacency: when any future recruitment exercises are held for judges and non-legal members in this tribunal, the opportunity will be taken to encourage Welsh-speaking employment lawyers, trade unionists, HR advisers and so on to give thought to whether they would wish to apply.

Devolution

Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 prevents an employment business from supplying the employer with temporary workers to perform the duties normally performed by a striking worker, or the duties normally performed by any other worker who has been assigned to cover the striking worker. The UK government published a consultation, which ran from 15 July 2015 to 9 September 2015, seeking views on the removal of Regulation 7. At the time of the user group, it had not yet published a response. On 13 September 2016, the Welsh government announced a consultation on proposals that sustain the principle of that regulation in Welsh public services should it be removed by the UK government. The consultation closes on 6 December 2016. Any users who wish to participate should do so:

https://consultations.gov.wales/sites/default/files/consultation_doc_files/16 0913-cnsultation_document_- _use_of_agency_workers_during_strike_action-en.pdf

As to the application of the Trade Union Act 2016 to the devolved Welsh public sector, BC referred the user groups to this written Parliamentary answer: http://www.parliament.uk/business/publications/written-questions- answers-statements/written-question/Lords/2016-05-18/HL22

3 Litigants in Person Working Party

In Cardiff, this update was given by Employment Judge Sian Davies (SD); and, in Mold, by BC.

In early 2016, BC and SD convened a working party of organisations within Wales which provide advice or support to unrepresented parties (whether claimants or respondents); it has about 15 members. They include ACAS, the Equality and Human Rights Commission, LawWorks, the Employment Lawyers’ Association, the Personal Support Unit, various law schools, advice clinics and Citizens Advice Cymru. The group has produced leaflets in Welsh and English which ‘signpost’ parties to those who might be able to assist them. There are separate leaflets for South and Mid Wales and for North Wales. Copies were shown to users. The working party is a good way of sharing information; for example, Flintshire and Newport Citizens Advice operate a scheme, funded by the Welsh Government, whereby tribunal fees can be paid (by way of loan, repaid if the claim succeeds) in cases involving allegations of discrimination. A representative of Newport CAB, Liz Frankis, confirmed that she hoped that the project would be renewed in March 2017.

In addition, the Employment Lawyers’ Association had chosen Cardiff ET as its first location outside London to operate the “ELIPS scheme”. ELA members will volunteer their services on one Friday a month, both to assist parties in complex preliminary hearings in person requiring extensive case management and clarification of the issues (including advocacy) and to operate a “drop-in clinic”. The ELIPS scheme has the support of the ET President. It starts on 21 October 2016.

4 Judicial assessment

BC drew users’ attention to the Presidential guidance on Judicial Assessment that was issued by the ET President on 3 October 2016.

Judicial assessment is an informal assessment by a judge, typically during a preliminary hearing involving a litigant in person, in which the judge gives a preliminary assessment of the case with a view to encouraging settlement between the parties. It will only take place if both parties agree, and will only take place after the formalities of the preliminary hearing (i.e. clarifying the issues and making case management orders) have taken place). If the parties agree, the judge can give a provisional assessment of liability and/or remedy. This is done

without evaluating the evidence, and the judge will make it clear the assessment is provisional and the result at a full hearing may well differ from the provisional assessment. The judge will then not be involved in any further part of the case.

BC added that this was a further tool in the judicial ‘ADR toolkit’, alongside judicial mediation. He observed that the judges of Wales ET had recently given judicial mediation a big push. More ET hearing days had been ‘saved’ through successful judicial mediations in 2016 than in the previous five years combined.

5 ACAS Update

An update of the work of ACAS was given by Gareth Petty in Mold and by James Forse in Cardiff.

To the end of August 2016, the ACAS helpline had taken 240,000 calls. 14% related to unpaid wages and about a third to disciplinary and dismissal situations. Calls about redundancy and TUPE remain high; calls about the national minimum wage are increasing. There are more live web chats. Lots of topics are discussed on Twitter (which can be followed at @ACASWales).

Notifications on early conciliation are running nationally at about 1,800 per week. There was a possible spike in July 2016 due to holiday pay claims. 90% of EC notifications are online. 75% of employers are willing to engage in the process. 80% of those providing EC notification are workers or employees; the remainder are respondents. Some foreign national workers had contacted ACAS to complain about Brexit-related harassment, but it was too early to say whether this would prove a long- term trend or a short-term response to the referendum on EU membership.

ACAS had been involved in several collective disputes in different sectors, including the junior doctors’ dispute in England and Southern Rail.

6 Administration Update

There have been several changes in staff, resulting in a regrettable reduction in experience levels. Gaynor Williams retires at the end of October 2016, having spent many years on the listing team. Andrew Smith is leaving his role as correspondence team leader to join HMRC. The office move in Cardiff, a recent increase in workload and changes in staff would mean possible delays in dealing with correspondence. Users were asked to be patient in their dealings with the tribunal.

7 Any other business

No AOB items were raised.

8 Next meetings

The next Wales ET user group meetings would be:

Spring Thursday 6 April 2017 (Mold Law Courts) Thursday 27 April 2017 (Cardiff Magistrates’ Court)

Autumn Thursday 19 October 2017 (Cardiff Magistrates’ Court) Wednesday 8 November 2017 (venue tbc)

It is possible that the meeting on 8 November 2017 may be held in Mold, but an alternative venue that better serves the users of North West Wales will be investigated.