British employment tribunals: from the side-lines to centre stage

Abstract

Employment tribunals, originally called industrial tribunals, were established 50 years ago in Great Britain and this article traces their gradual change. Originally constituted as administrative tribunals in 1964, they morphed to party versus party forums from the 1970s, but this change did not stop there. Over the succeeding years, employment tribunals moved from a marginal role to a central role in British employment relations, as their caseload has risen, their remit has widened, and as legal regulation has replaced collective regulation. Moreover in so doing, employment tribunals have become less accessible to workers, less speedy and more expensive. They have also become more formal, with legal norms and practices and adjudication by lawyers alone replacing industrial relations norms and adjudication by a mix of lawyers and lay people. As a result, employment tribunals have become juridified. The article concludes by critiquing the basis of employment tribunals which is the self-help/complainant after the event approach, as opposed to state enforcement of statutory employment rights.

Keywords::

• employment tribunals
• dispute resolution
• tripartism
• juridification
• legalism
• judges
• British employment relations

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

^1.Heery and Noon, A Dictionary of Human Resource Management, 254.

^2.Simitis, “Juridification in Labour Relations” 113–61.

^3.Masterman, “Labour's juridification of the Constitution”, 476–92.

^4.Blichner and Molander, “Mapping Juridication”, 36–54.

^5.Department for Business, Innovation & Skills, 6.

^6.Dickens et al., Dismissed, 9.

^7.Kahn-Freund, Labour and the Law, 9–10.

^8.Department for Business, Innovation & Skills, 31.

^9.Van Wanrooy et al., Employment Relations in the Shadow of Recession, 58.

^10.Gumbrell-McCormick and Hyman, Trade Unions in Western Europe.

^11. See Simms and Charlwood, “Trade Unions: Power and Context in aa Changed Context”.

^12.Smith and Morton, “Nine Years of new Labour” and Smith and Morton, “The conservative Governments”.

^13.Royal Commission on Trade Unions and Employers' Associations, 155–59.

^14. See Wallington, Butterworths Handbook of Employment Law for full details current at the time of writing.

^15. See Hepple, chair of Justice committee on Industrial Tribunals, 7. The figure relates to England and Wales only.

^16.Harding et al., Survey of Tribunal Applications, 24.

^17. Employment Rights Dispute Resolution Act 1998 s.1(1). In Northern Ireland they are still called industrial tribunals.

^18.Clark and Wedderburn, “Modern labour law”, 127–242.

^19.Wedderburn, The Worker and The Law, 264.

^20. In France David (1974) cited in Moritz (1987:144) considers that the conseils de prud'hommes were ‘a historical achievement’ on the part of the trade unions.

^21. An interview with Sir Diarmaid Conroy, President of the Industrial Tribunals England and Wales The New Law Journal, (1970), 19 November 1069–1070.

^22. Parliamentary archive 12 December 1963.

^23. See accessed December 3, 2014. http://hansard.millbanksystems.com/commons/1966/nov/17/industrial-tribunals-selective.

^24.Employment Department, Options for Reform, 8. Renton, Struck Out, 26–27.

^25.Wedderburn, The Worker and the Law, 264.

^26.Royal Commission on Trade Unions and Employers' Associations, para 572.

^27. Ibid., para 573.

^28. Ibid., para 576.

^29.Meeran, ‘The Employment Tribunals’, 129–30.

^30. See the report by Franks (chair) Committee on Administrative Tribunals and Enquiries, para 406.

^31.Royal Commission on Trade Unions and Employers' Associations, para 578.

^32.Dickens et al., 201. The figure relates to single claims only.

^33.MacMillan, “Employment Tribunals: Philosophies and Practicalities”, 46.

^34. Tribunals Statistics Quarterly January to March 2014.

^35.Dickens et al., 205.

^36. Tremlett and Banerji, 1992Survey of Tribunal Applications, 56.

^37.Harding et al., Survey of Tribunal Applications 2013, 75.

^38.MacMillan, “Employment Tribunals”, 35.

^39. Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 SI 2004/1861.

^40.Bowers et al., Industrial Tribunal Practice and Procedure, 229–30.

^41. Accessed November 7, 2014. www.gov.uk/government/uploads/system/uploads/attachment_data/file/309967/ET1_web_0514_save.pdf.

^42. Employment Tribunal Statistics 2006–2007, 2.

^43. Ministry of Justice statistics 2010–2011, Table 1.

^44. Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Rule 12b

^45.Hepple and Fredman, Labour Law and Industrial Relations in Great Britain, 62.

^46. Employment Tribunal Constitution and Rules of Procedure 2013. Rule 39

^47.Hepple, Industrial Tribunals, 11.

^48.Wallington (ed) Butterworths Employment Law Handbook

^49.Cook v Thomas Linnell & Sons Ltd [1977] IRLR 132

^50.Weekes et al., Industrial Relations and the Limits of the Law, 29

^51.Wedderburn, Labour Law and Freedom, 111.

^52. Employment Rights Act, 1996, s.98.

^53.W Devis & Sons Ltd v Atkins [1977] IRLR 314

^54.Iceland Frozen Foods Ltd v Jones [1982] IRLR 439

^55.Haddon v Van der Bergh Foods [1999] IRLR 672

^56.Collins, Law on unfair dismissal, 35–36.

^57.Post Office v Foley; HSBC Bank v Madden [2000] IRLR 827

^58.George Wimpey & Co Ltd v Cooper 1977 [IRLR] 205

^59. [1978] ICR 221.

^60.Dickens et al., Dismissed, 73.

^61.Harding et al., Survey of Tribunal Applications, 45.

^62. Statement by the President of the Employment Appeal Tribunal The Honourable Mr Justice Morison given on Monday 6 October 1997, unpublished.

^63.Genn and Genn, Effectiveness of Representation in Tribunals, 1989.

^64.Adler, accessed November 7, 2014. http://ajtc.justice.gov.uk/adjust/articles/AdlerTribunalsUsedToBe.pdf.

^65.Rubin, “The Origins of Industrial Tribunals”, 1977.

^66. Kahn Freund, Labour and the Law, 83

^67. Equality Act, 2010 s.114. It is not clear how such assessors are chosen, but it seems that they are drawn from the tribunals generally, not the employment tribunal specifically.

^68.http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part61#IDAQXNCC

^69.Wedderburn, Labour Law and Freedom, 295.

^70. Department of Trade and Industry, Appointment of Lay Members, 1998. The author was a lay member of the employment tribunals from 1976 to 1988 and then a member of the Employment Appeal Tribunal and her nomination to both those bodies was through the TUC. In all that time she never received any briefing, communication or training from the TUC in respect of her lay member role.

^71. ET (Constitution & Rules of Procedure 2013 Regulation 8.

^72. For example Selwyn, N. (2008) law of Employment (15th ed) said that 96% of decisions were unanimous although he does not provide any source for the figure that he quotes and a survey by Corby and Latreille “Balance” reported that more than 70% of British employment tribunal chairs reported that 70% of their decisions had been unanimous in the previous year. Accessed December 1, 2013. http://www2.gre.ac.uk/about/schools/business/research/centres/weru/publications.

^73. Interestingly the government since 1974 has encouraged tribunals when adjudicating on sex discrimination and equal pay claims, to have a woman on the tribunal.

^74. In Halford v Sharples [1992] ICR 146, the Employment Appeal Tribunal ruled that on the whole it was undesirable to select members of employment tribunals on the basis of any specialist knowledge that they may have, as their decisions might be informed more by their own knowledge than by the facts and evidence relevant to the particular case.

^75.Leggatt, Tribunals for Users, para 1.2

^76.Gillies v Secretary of State for Work and Pensions [2006] UKHL 2

^77. Accessed September 8, 2014, www.council-on-tribunals.gov.uk/adjust/item/nonlegal2.htm.

^78.Corby and Latreille, “Balance”, 16–18.

^79. Ibid.

^80. See Employment Tribunals Act 1996, s.4 for full details of where the Employment Judge (as the legally qualified person is termed) can sit alone and in what circumstances he/she can elect to sit with lay members. In all cases where the professional judge has the power to sit alone there is discretion for him/her to opt for a tripartite tribunal, but anecdotal evidence indicates that the professional judge very rarely exercises this option.

^81. Accessed November 6, 2014, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/218497/employment-trib-stats-april-march-2011-12.pdf. More recent TUC estimates, based on Ministry of Justice statistics for April–June 2014 suggest that the legally qualified judge now sits alone in three quarters of all merits hearings/In other words a tripartite tribunal sit on a quarter of all cases. See accessed September 12, 2014http://www.tuc.org.uk/print/120987 and Corby and Latreille), “Tripartite Adjudication”.

^82. Employment Rights Act 1996 s.98(4)(a).

^83. House of Commons General Committee 21.3.02.

^84.Employment Department, Options for Reform, 41.

^85.Carnwath, ‘Tribunals and the Courts – the UK model, 8.

^86. Costs are termed expenses in Scotland and there is a Sheriff's Court, not a County Court as in England and Wales.

^87. The limit excludes wasted costs (i.e. an order made against a representative as a result of that representative's conduct) where there is no cap.

^88.Harding et al.Survey of Tribunal Applications, 69.

^89. Tribunals Statistics Quarterly April to June 2014, 8

^90. TUC analysis: Accessed September 8, 2014www.tuc.org.uk/print/120987

^91.TUC, At What Price Justice?

^92. For instance only in five out of 4596 (0.1%) of unfair dismissal cases upheld in 2012–2013 was there re-employment.

^93.Department of Business, Innovation and Skills

^94. Ibid.

^95.Blichner and Molander, ‘Mapping Juridication’.

^96.Millward et al., Industrial Relations in Transition, p. 213, note 1.

^97. Van Woonroy et al., Employment Relations in the Shadow of Recession, 157.

^98. See for instance British Chambers of Commerce Up to the Job, (2010); Confederation of British Industry (CBI) Settling the Matter (2011) submission to Department of Business, Innovation and Skills.

^99.Teubner, “Juridification, Concepts, Aspects, Limits, Solutions”, 3.

^100. These figures can be gleaned from a careful study of successive ACAS annual reports.

^101. For more details see Corby and Burgess, Adjudicating Employment Rights, chapter 12.

^102. Dickens, ‘The Coalition Government's Reforms’, 237.

^103. See Corby and Burgess, Adjudicating Employment Rights. For instance, the Health and Safety Executive dates back to 1975, but the enforcement powers of HM Customs and Excise in respect of the minimum wage date back to 1999.

Additional information

Notes on contributors

Susan Corby

Susan Corby is Professor of Employment Relations at the University of Greenwich, UK. She has written widely on the institutions for adjudicating employment disputes in a number of EU countries and the USA. Formerly a trade union official, she has been a lay member of Great Britain's employment tribunals and Employment Appeal Tribunal and is currently an arbitrator for a government agency (the Advisory, Conciliation & Arbitration Service).