Gibraltar Employment Tribunal Reform

05/05/2016 Mark W. Isola KC, Samantha Grimes

Her Majesty’s Government of Gibraltar is extremely pleased to announce the publication of a Bill that will commence the process of reform of the Industrial Tribunal; to be known as the Employment Tribunal. The substantive review introduces new subsidiary legislation and accompanying updates to the Employment Act. The new rules will regulate the constitution and procedure applicable to the Employment Tribunal, the fees payable to mediators and the calculation of compensation, as well as extending the type of cases that will be heard before the Employment Tribunal. The secondary legislation will be enacted once the Bill amending the Employment Act is debated and passed in Parliament.

The wholesale review of our employment tribunal legislation has entailed considerable work in designing a legal framework that:

Makes the Tribunal accessible to persons without substantial funds, whether they be employers or employees. Her Majesty’s Government of Gibraltar has refused to introduce fees to commence or defend proceedings or to allow for the payment of deposits. Such fees represent, in our view, a tax on justice;

Speeds up the Tribunal process by ensuring effective case management powers and guarantees free, compulsory mediation; and

Introduces substantive legislative procedures and operational processes to ensure consistency in the decisions of the Employment Tribunal.

It is important to highlight that the Employment Tribunal (Constitution and Procedure) Rules 2016 have been drafted in plain English to assist litigants in person. The overriding objective ensures that cases are dealt with fairly and justly, that parties are on an equal footing, avoids unnecessary formality, seeks flexibility in the proceedings and saves expense. A step-by-step guide on how to complete the claim form and the response form has been produced. Staff at the Department of Employment will also be readily available to provide advice or assistance.

In addition, the Ministry of Employment, in partnership with the University of Gibraltar, will offer a tailor made day course for lawyers who may be eligible for selection as Chairpersons to the Tribunal. This is the first time that training for Employment Tribunal Chairpersons will be offered in Gibraltar. The Training Day will provide Chairpersons who preside over Employment Tribunals with an opportunity to develop their knowledge and understanding of the new laws and procedure. The training will include topics on managing and solving the problems commonly encountered in assessing evidence, structuring decisions and formulating reasons.

It is important to acknowledge the substantive support of the Bar Council, which conducted their own review of the proposed legislation and provided the Government with their invaluable advice. Her Majesty’s Government of Gibraltar also wishes to express its gratitude to the Gibraltar Chamber of Commerce, Unite the Union, the Gibraltar Teachers Association and the Gibraltar General and Clerical Association for their feedback and comments.

In addition, Minister Costa is extremely grateful for the time afforded to him by the Chief Justice, Mr Anthony Dudley, in order to obtain and discuss his views on the legislative reform.

The Hon Neil F Costa MP commented: “The new legislative architecture is designed to provide a clear adjudication process to the benefit of the parties before the Employment Tribunal. The wholesale review will modernise the legal process, provide Chairpersons with robust and efficient case management powers and hopefully, thereby, re-instill public confidence in the Tribunal. In accordance with our electoral pledge, compulsory mediation is introduced at no cost to the parties in dispute, with the hope that some parties will settle their dispute without the need for a full hearing. Naturally, there will be no fees required to be paid by a person filing a claim or response. The reform will also see the introduction of a new claim and response form and detailed guidelines aimed at easing the burden of initiating or defending a claim. I wish to thank my Ministry’s Legal Counsel for his excellent work in preparing the different pieces of legislation. I am proud to have led in this extensive reform which will make access to justice easier, expeditious and fairer.”

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