Doris Littlejohn: Nails in the tribunal coffin but Scotland keeps ethos alive
Employment tribunals have transformed beyond recognition since they were first introduced in 1964 as industrial tribunals, acquiring the right to hear unfair dismissal cases in 1972.
The tribunals were originally intended to be cheap, informal and quick methods of resolving disputes arising out of alleged unfair treatment at work and to minimise strikes and other forms of mass industrial action in the days when trade unions had considerably more industrial muscle.
In the early days, the tribunals lived up to this ideal. It would not be unusual for judges to sit through two cases a day. Most unfair dismissal cases were listed for half a day and completed in that time. Legal representation was rare and we relied heavily on the expertise of panel members, one of whom was drawn from the management side of industry and one from employees’ organisations, in practice normally a trade union.
Disputes over the law were rare and the tribunals dealt mainly with the facts; deciding on the basis of the evidence heard what had actually taken place. Preliminary and interlocutory hearings were rare and case management hearings simply didn’t take place. Awards would typically not be large, with many cases resulting in awards of a few hundred pounds.
Compare that to the situation today, where it is not unusual for cases to take a number of days to resolve, particularly in Scotland where almost all evidence is led orally and is recorded in longhand by the tribunal judge (as they are now known). Legal representation has become the norm, particularly on the employers’ side, with the consequent expense that is generally not recoverable – win, lose or draw.
There is always a temptation to look at the past through rose-tinted spectacles. The stakes are now much greater for both sides and it would be naïve for the system to revert back to the early days. Developments in discrimination law, the creation of concepts such as the Transfer of Undertakings Regulations and myriad other laws, most of which are European in origin and cannot be repealed, have seen to that.
Nonetheless, it is a matter of regret that the government proposes to further dilute the unique aspects of the tribunal system.
I fear the inevitable outcome of proposals under the Enterprise and Regulatory Reform Bill will be an increased focus on technical, legal arguments. Among others, the proposals include: compulsory pre-claim ACAS conciliation prior to a tribunal claim being accepted, tribunal powers to charge employers financial penalties or fines in “aggravating circumstances”, and the right of employers to have disregarded from evidence at any subsequent tribunal hearing protected conversations with employees regarding their termination.
With every additional rule or regulation, another hurdle is created for the employer or employee to overcome and another opportunity for the lawyers to argue about the interpretation and application of that particular rule or regulation, making tribunals even more legalistic than they are already.
The move to limit the involvement of lay panel members in unfair dismissal claims deprives the tribunal of the benefits of the valuable input of those who have practical day-to-day knowledge of the workplace, which is essential for determining what is reasonable where that is required by the legislation. It is a symptom of the drive towards making the adjudication of employment disputes a purely legal question rather than one of workplace fairness. It means the beginning of the end for the industrial jury which is a retrograde step.
The proposal to require tribunal claimants to pay a fee as a precondition of making a claim, which the government has said will be implemented in July 2013, will also drive another nail into the coffin of the original intention that tribunals should be easily accessible and cheap. The almost inevitable reduction in tribunal claims that will follow the introduction of fees will be viewed as a success by the government, but will inevitably be at the expense of depriving some employees of the chance to challenge their treatment by their employer.
It is not all doom and gloom, however. I am pleased to note that the Scottish tribunal system has been very vocal about its role in maintaining a uniquely Scottish approach, which is as informal and non-legalistic as possible, and thus distinct from the tribunal procedures south of the border, which have been steadily becoming more and more legalistic. That, at least, provides some hope.
• In 1976, Doris Littlejohn was the first woman to be appointed as an industrial tribunal chairman (as they were then known) and is a former president of Scottish tribunals. She is a director of Law At Work.
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