Proposed changes to the Employment Tribunal rules

Summary

The request sought details regarding proposed Employment Tribunal rule changes, specifically concerning an individual referred to as 'Person A' and consultation responses. The Department for Enterprise released some consultation responses but withheld information about Person A and a confidential response citing data protection exemptions.

Key Facts

• The request concerned proposed procedural changes to Employment Tribunal rules regarding costs.
• The consultation officially closed on 2nd May 2018, though a late response was accepted on 15th May.
• The late response was from a consultee who requested confidentiality and was not taken into consideration.
• Information regarding 'Person A' and their communications was withheld as it constitutes personal data.
• The Department stated it does not hold information regarding conflicts identified between Person A and the Treasury Minister.

Data Disclosed

• 2018-06-06
• 2018-07-04
• 2018-05-25
• 2018-05-02
• 2018-05-15
• 2018-04-23
• 8
• 2
• 498133

Exemptions Cited

• Section 19 of the Freedom of Information Act 2015 (Information not reasonably accessible)
• Section 25 of the Freedom of Information Act 2015 (Personal data)
• Data Protection Act 2002 (Fairness and lawfulness principles)

Original Request

Information request in relation to proposed changes by the Department for Enterprise to Employment Tribunal Rules in relation to costs.

Data Tables (1)

Full Response Text

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Freedom of Information Co-ordinator 1st Floor, St Georges Court Upper Church Street, Douglas Isle of Man IM1 1EX

Telephone: (01624) 685375 Website: www.gov.im/ded Email: steven.tallach@gov.im

Our ref: 498133 27 June 2018

Dear ###

We write further to your request which was received on 6 June 2018 and which seeks further information pertaining to your previous FOI request on the Department’s consultation relating to proposed procedural changes to the Employment Tribunal:

The detail of the information requested and our response to those requests is as follows:

Your request “we would be grateful if the Department could confirm if person A is an individual, corporate body or government department and also if A is a party to any current proceedings in the Employment Tribunal.” Our response In relation to both parts of this request, the Department considers that section 19 of the Freedom of Information Act 2015 applies to this request. Under section 19 a public authority may refuse a request where to either confirm or deny whether it holds information would itself be absolutely exempt information or qualified exempt information under the Act. In this instance, if the information you requested did exist or was held by us an exemption under section 25 of the Act would apply to that information. This exemption would apply because we consider that releasing information into the public domain would amount to personal data under the Data Protection Act 2002, and that the disclosure of the information would contravene one of the data protection principles, namely that the Department can only disclose the information where it would be fair, lawful and meet one of the conditions in schedule 2 and in this case, none of those conditions have been met. Page 2 of 4 Your request “Person A contacted the Treasury Minister. Can the Department please confirm if any potential conflicts were identified in this matter, particularly due to the fact that the Creechurch Capital case has been noted and if conflicts were identified, the details of these conflicts and how they were managed/proposed to be managed.” Our response The Treasury forwarded A’s original email to the Department. In this instance the public authority does not hold or cannot, after taking reasonable steps to do so, find information relating to conflicts being identified or managed. Your request “The Department have confirmed that there was an email dialogue between the DfE Legislation Manager, Jonathan Clague and person A, can the Department please provide details of the communications.” Our response The Department has already advised that “person A contacted the Treasury Minister regarding matters relating to the Employment Tribunal” in our response to your first request dated 25 May 2018. We are unable to provide any further information in relation to this because the Department considers the “details” of the communications to be absolutely exempt under section 25 of the Act (absolutely exempt personal information). The reasons why that exemption applies are that: • the Department is satisfied that the information amounts to personal data under the Data Protection Act 2002; and • the Department is satisfied that disclosure of the information would contravene one of the data protection principles, namely that the Department can only disclose the information where it would be fair, lawful and meet one of the conditions in schedule 2 and in this case, none of those conditions have been met. Your request “Can the Department please confirm, has the consultation now closed and can the Department please provide copies of the responses received to the consultation.” The consultation closed on 2nd May although the Department accepted a late response from one of the consultees which was submitted on 15th May. The response was received from a consultee who wished their response to remain confidential. The response was not taken into consideration by the Department. Copies of the responses received, other than the response from the consultee who wished their response to remain confidential, are attached. Once again, the Department considers the response to be absolutely exempt under section 25 of the Act (absolutely exempt personal information). The reasons why that exemption applies are that: • the Department is satisfied that the information amounts to personal data under the Data Protection Act 2002; and Page 3 of 4 • the Department is satisfied that disclosure of the information would contravene one of the data protection principles, namely that the Department can only disclose the information where it would be fair, lawful and meet one of the conditions in schedule 2 and in this case, none of those conditions have been met. Your request “Regarding 'The specific proposal was made by the DfE Legislation Manager and it was not communicated to A in advance of the consultation which commenced on 23rd April'. Can the Department please confirm if person A was contacted in the same way as Creechurch Capital Limited were contacted for the opportunity to respond to the consultation.” Our response Once again, the Department considers that section 19 of the Act applies to this request. Under section 19 a public authority may refuse a request where to either confirm or deny whether it holds information would itself be absolutely exempt information or qualified exempt information under the Act. In this instance, if the information you requested did exist or was held by us an exemption under section 25 of the Act would apply to that information. This exemption would apply because we consider that releasing information into the public domain would amount to personal data under the Data Protection Act 2002, and that the disclosure of the information would contravene one of the data protection principles, namely that the Department can only disclose the information where it would be fair, lawful and meet one of the conditions in schedule 2 and in this case, none of those conditions have been met. Your request “With regards to the Department's response 'In relation to the other points raised, some assertions in the question are incorrect.', we disagree and would welcome the Departments further comments: -

There is a proposed change to the Employment Tribunal Rules to introduce the ability for the tribunal to award costs in much the same way as the High Court can award costs ' At 6. The Department's proposal '..… The Department is minded to make a procedural change to the costs rule order to give the Tribunal Chair the discretion to assess costs over £500 without the need for referral to the High Court. This would give the Tribunal greater flexibility to deal with cases such as Sutton v. Creechurch Capital Ltd, which the 2008 Rules do not cater for…' This is a proposed amendment to Rule 32(9)(a) as the current Rule does not allow for the Tribunal Chairman to deal with costs on an assessment basis, this has to be dealt with in the High Court. The proposed change to the Rule 32(9)(a) would allow the Tribunal Chairman to deal with costs on an assessment basis above the threshold of £500. The fact that that the proposed amendment would be used extremely seldom is irrelevant the proposal is a change to the Tribunal Rules and as such is a fundamental change." Page 4 of 4 Our response The Department has nothing further to add to its comments in response to the previous information request. Please quote the reference number 498133 in any future communications.

Your right to request a review

If you are unhappy with this response to your freedom of information request, you may ask us to carry out an internal review of the response, by completing a complaint form and submitting it electronically or by delivery/post.

An electronic version of our complaint form can be found by going to our website at https://services.gov.im/freedom-of-information/Review . If you would like a paper version of our complaint form to be sent to you by post, please contact me and I will be happy to arrange for this. Your review request should explain why you are dissatisfied with this response, and should be made as soon as practicable. We will respond as soon as the review has been concluded.

If you are not satisfied with the result of the review, you then have the right to appeal to the Information Commissioner for a decision as to: 1. whether we have responded to your request for information in accordance with Part 2 of the Freedom of Information Act 2015; or 2. whether we are justified in refusing to give you the information requested.
In response to an application for review, the Information Commissioner may, at any time, attempt to resolve a matter by negotiation, conciliation, mediation or another form of alternative dispute resolution and will have regard to any outcome of this in making any subsequent decision. More detailed information on your right to a review can be found on the Information Commissioner’s website at www.inforights.im. Should you have any queries concerning this letter, please do not hesitate to contact me. Further information about freedom of information requests can be found at www.gov.im/foi. I will now close your request as of this date.

Yours sincerely

FOI Co-ordinator

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Proposal to amend Employment Tribunal Rules Response from Douglas Stewart, Chairman of the Employment Tribunal I have studied your letter of 23rd April and enclosures and I'm delighted that action is being considered to redress a situation which has worked unfairly in a number of instances to my personal knowledge arising from hearings which I have undertaken. I welcome in particular the flexibility that would avoid a litigant having to go to the High Court. Whilst I see that the proposal is that there is an option to go to the High Court OR to have the matter resolved within the Tribunal in larger awards, I personally would remove the opportunity to go to the High Court except by way of an appeal against the decision on the actual sum of costs awarded by the Tribunal.
My guess (it is just that) is that almost all lawyers concerned in litigation have a solid grounding in the principles of costs and having to justify them or challenge those of other firms. Thus, I take from this, that Chairs will be familiar with the costs basics. However, I do think a quick refresher of the principles would be helpful. Taking the matter to the High Court under subparagraph 9 (c) will have the following effect:  It is likely to be expensive. His Honour Deemster Wild declined to award costs to either party in Smith v RL 360 - a recent appeal followed by a second hearing just on a costs issue. Each party will have incurred considerable time and /or legal fees but because both had acted reasonably, each side was saddled with their costs. – see www.judgments.im/content/J2010.htm. I have no doubt that at future Tribunal hearings, consistent with the learned Deemster’s approach, Chairs will continue to award costs only in the small minority of appropriate cases.
 Involving the High Court is likely to be a more prolonged process and the final hearing is likely to take place after a longer period of delay than would be the case before the Tribunal.  It is likely, to a limited extent, to add to the overall burdens within the High Court. That is not simply time involving the the legal arguments but in the time involved for the learned Deemster to understand the full background as to why the Tribunal considered an order for costs was appropriate which can, or often will, involve extensive reading. In contrast, the Tribunal which was minded to award costs has all the facts very much in mind and is perfectly capable of investigating the means of the paying party.

Page 2 of 4

My personal feeling is therefore that neither party should have the right automatically to refer the matter to the High Court but that instead, the Tribunal or the Chairman should have the power in any case to make an order that the matter be resolved in the High Court - whether because of the amount involved, complexity of the issues or otherwise. In considering the position, it should be noted that in the past few years, there have been a number of large awards of compensation in appropriate cases. In my view, this trend will continue due to whistleblowing or other issues (and the new equality laws) taking the potential award way beyond the normal cap. One case currently before the Tribunal seeks compensation running into millions. The point I'm making is that increasingly, the Tribunal is having to deal with large sums and complex issues and should therefore be regarded as competent to take some burden off the High Court and to provide swifter justice for the litigants. Whilst the great majority of cases before the Tribunal are for relatively modest sums and give rise to no particular issues as to costs, I do think that the Tribunal/Chairman should have increased flexibility on the approach to an award - not in terms of when costs may be awarded but as to their amount. It may be that the approach to the size of the award has been ultra-cautious and that larger sums could have been awarded whilst still under £500.
I would welcome clarity on whether the award for costs has to be disbursement based (as I believe it currently is) or whether there can be any compensatory element. The point I'm making is that an unrepresented party who deserves a payment of costs may receive no more than petrol money and car parking or very modest wage losses as the yardstick for the amount of costs awarded. Bearing in mind that in the case of a successful Claimant, there is no flexibility on the part of the Tribunal to make an award of general damages for the manner in which litigation has been handled which may have been grossly unfair, awarding that Claimant a derisory £15 or similar as a costs award means that the punishment of the paying party does not fit the crime. The point is that, whilst a Claimant can include in an Unfair Dismissal claim, losses such as something for attending the Tribunal if it cost working time or money (but such a claim is not always advanced), unrepresented Claimants can point to no sum in most situations that punish, deter or sanction a potential paying party. That party currently gets a windfall.

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My recent decision in the case of Trueman v K S Restaurant |Limited (17/40) is a very good example of where the outrageous conduct of the Respondent provided no compensation for the Claimant for the manner in which the litigation was handled and the several days that she had to spend at the Tribunal. An award of general damages or an enhanced sum by way of costs (i.e. going beyond disbursements) being part

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