Tuesday 1 February 2011

Should Employment Judges sit alone?

The government's consultation paper on Resolving Workplace Disputes, published last month, seeks views at p43 on whether Employment Judges should sit alone, without wing members, in unfair dismissal claims.

Wing members are typically highly capable and experienced small business owners, HR professionals or union representatives. They add a very real benefit to tribunal hearings. They provide perspective as to what is (and isn't) acceptable in the workplace. They act as a fetter to an occasionally overbearing employment judge (of whom there are thankfully far fewer these days) - never in public, but often behind the scenes. And the need for structured panel debate before reaching a conclusion avoids a swift rush to judgment.

But these benefits come at a price. Not only the considerable financial cost of paying the wing members' fees and reimbursing their expenses, or the administrative cost of the wing member selection and allocation processes. But the following costs are also real and significant:-

(a) slowing down proceedings: the tribunal goes at the speed of the slowest reader of the three tribunal members, and the speed of the slowest writer of the three members.

(b) delay: when cases go part-heard, the frustration at having to wait months for another date when everyone can attend can be reduced (albeit not eliminated) if the dates do not need to fit the convenience of the wing members' diaries.

(c) legal issues: it is very rare for a judge or wing member to have difficulty applying the Burchell test. But once one comes to the application of a tricky equal pay or working time regulations point, it is undesirable that (in theory, at least) the two unqualified wing members can overrule the legally qualified and experienced employment judge on a point of law.

The requirement for a panel of three has been eroded over the years. Employment judges now sit alone on case management discussions, most pre-hearing reviews, and claims relating to unlawful deducions, unpaid holiday pay and redundancy payments. In some cases, the parties can consent to the employment judge sitting alone. If the case is particularly complex, the Regional Employment Judge can still direct it be heard by a panel of three rather than a single judge (s4(5) Employment Tribunals Act 1996).

Notwithstanding the benefits that wing members bring, 'mainstream' justice has never seen the need to temper a judge's assessment of the facts, or of what is reasonable, with wing members who can overrule him. County court and High Court judges made decisions all the time about whether someone has acted reasonably (which is the fundamental issue in any unfair dismissal case). It is the bread and butter of judging. It is difficult to see why central funds should pay for wing members to help employment judges make this sort of decision, when other judges (often hearing much higher-value and more complex claims) do not receive such help.

If the judge sits alone, the case is dealt with faster. That might not be a popular statement, but it's true. That means less cost and time for the parties, and less cost for the tribunal system. It also means that employment judges will be able to get through more cases, either reducing the backlog of cases waiting for a full hearing or dealing with the neverending boxes of case management applications which require a decision on paper.

Sometimes it will be desirable for an Employment Judge to have the assistance of wing members. Such cases are probably not common, but they do exist. Such a case will inevitably require at least one case management discussion, at which the judge can raise the issue (or the parties can make an application), and an informed decision can be made.

There were 9,700 unfair dismsisal claims disposed of at a full hearing by the employment tribunal system last year. Assuming each lasts an average of one day, this would potentially eliminate the deployment of 19,400 wing member days. The daily fee paid to a tribunal wing member is £194, although the Department of Business, Innovation and Skills assesses this at about £230 if administrative and other support costs are added in. So there would be an immediate annual cost saving of up to £3.8m (or £4.5m if including support costs) if wing members were no longer required in unfair dismissal claims.

A caveat must be added; many claims involve multiple jurisdictions. A Claimant may allege discrimination at the same time as unfair dismissal. Assuming that wing members will remain for such hearings, it is apparent that the savings will not be as high as set out in the previous paragraph. But, nevertheless, they remain substantial. Balanced against this is the fact that a very significant proportion of unfair dismissal cases take more than a day, increasing the overall cost to the system.

As an ancillary benefit, abolishing the requirement for wing members in unfair dismissal claims would also enable the Employment Tribunals Service to cancel the recruitment exercise, due to take place later this year, for a further 300 wing members to cope with current needs. This would make an immediate saving of £0.5m (the cost of the previous recruitment exercise).


Simon said...

I can see the merits in your argument. But my concern is that a solicitor who has only ever worked in a legal office before becoming an Employment Judge will have no idea about the issues of how factories, offices, charities etc "work" and instead of dealing with the facts and circumstances of the case will employ an overly legalistic approach. It might work if employment judges were required to have had some commercial or industry background or were required to spend time there as part of their training.

Anonymous said...

I believe the proposals are politically driven by a need to be seen to unburden employers and to save costs for the deficit reduction.Wing members provide protection for judges, a sounding board, and expert insight for judges, and give valuable insight into the real and current world of the workplace.
The fee is £174 not £194. The desire to reduce costs and numbers of tribunals can be achieved if employers invested more in their management training, which might also reduce turnover and sickness, which dwarf (£4 bill pa) the estimated £3m artifical savings for exempting wing members.
As a wing member,it is my experience that judges prefer to have wing members and that they do not slow down proceedings, but in fact add value to the process.The govt and employers would do better to focus on promoting healthier and less combative workplaces, which in turn would reduce the need to get into expensive litigation.Front end prevention (like health) is better than the cure. Compulsory workplace mediation would help but is not proposed.I am yet to see a vexatious/weak case, all of which are already filtered out by judges at pre-hearing. Acas will not cope with a deluge of claims, and further hold ups are inevitable.Wing members may disappear, but the huge problems wil not.(personal views)

Alan Lewis said...

One other factor to add to those which Daniel rightly identifies as causing delay - the promulgation of the decision of a Tribunal is significantly delayed, as the draft judgement has to be approved by all three members. Those of us well used to dealing with Tribunals will have a number of stories to recount about the delay from end of oral hearing to receipt of decision.

Anonymous said...

I helped my son with two Disability claims because he felt that NHS Trusts did not incorporate the legislation in their recruitment processes.
The quality of the wing members was disappointing. We presented a statistic which, in the Reasons, had been recalculated. I had a career in Business Research!
Furthermore, they were clearly in thrall to the Consultants from the NHS, which is anyway, an organisation beyond criticism.
I do believe that compulsory reference of cases to ACAS would be valuable for unrepresented Claimants. Neither Trust would agree to their involvement. The benefit would be a better appreciation of the merits of the case and the avoidance of lawyer's sharp tricks like late submission of Statements, meritless Costs warnings and failure of Disclosure.

Malcolm Martin said...

Reasonableness needs to be judged in context and the fact that wing members are included to assist that judgement it is an asset of the Employment Tribunal system; and there is a limitation where that context is not provided.

I contest the assertion that Wing members slow proceedings down to any significant extent. Indeed they often have a perceptive question to the claimant or respondent, questions that make that witness think more deeply. That can speed proceedings.

Employers sometimes resent Employment Judges exercising great authority over how their business is managed without Judges having any responsibility for its success, or even survival.

On the other side, claimants can be re-assured by the notion that one of the panel, at least, is likely to relate to their viewpoint.

Removing Wing members may further irritate respondents and intimidate claimants. When the law is not felt fair then it is at risk.

Employment Law Manchester said...

On the face of it, it would appear that employment cases are decided solely by the chairman/judge

However, who knows what goes on behind closed doors. I would assume that the other 2 judges provide valuable input based on the fact that they can observe the hearing and pick up on facts that may be missed by the chairman.

I can see the financial argument, but A single chairman can only be a negative thing in the interests of justice.

Anonymous said...

In a crucial and important press release today, ACAS have confirmed what most employment relations practitioners knew already, that lay members add valuable expertise and more importantly add balance to the unique tribunal process in UK.
They also confirmed that (equal pay multiple claims apart) there is no evidence that tribunal claims are soaring, in fact they have reduced by 14% on single claims year on year in last two years.
The coalition friendly media should report more accurately the facts. Acas also highlight that a culture of informal resolution and more management training is needed to prevent litigation, instead of jumping to compromise agreements to cover up poor management.
I am delighted the well respected and independent ACAS have backed the use of lay members in unfair dismissals and discrimination cases.Hopefully common sense will prevail.

Anonymous said...

I'm delighted ACAS and the CBI support the use of lay members in unfair dimissals. Also ACAS put paid to the media hype on soaring cases.(multiples excluded) More resources is needed,better training for ineffectual managers, more help for ACAS, and formal mediation. The proposals are essentially cost driven so i don't expect the politicians to listen.But we will see.

Anonymous said...

Daniel's comments are a mixture of guess and opinion. Firstly in 6 years of being a lay member I've never known the two lay members to out vote the judge on a decision. It must be very rare. Secondly in my experience lay members are often very knowledgeable about employment law - helped by web sites like this! Thirdly on cost, the payment to wing members on employment tribunals is the lowest paid to any UK tribunal members. Finally it is also a question of the perception of justice by the users. Getting rid of wing members wouldn't help this. Often judges have a poor understanding of workplace terms, culture and customs and practise. The wing members know the real world.

Anonymous said...

I am also a tribunal wing member and I agree with the comments made by Anonymous on 17 February. In my tribunal several wing members of both sides have an excellent knowledge of employment law - I have a law degree and have been an employment law consultant for almost 25 years. Several of the union wing members also have a wide knowledge of the law. Furthermore, we are provided with the IDS Briefs and handbooks to keep us up to date. The majority of our judges prefer to sit with wing members as we bring our experience of the industrial and commercial world and it is not unknown for them to be persuaded by our arguments to change their initial view of the case. I believe we would be a great loss to the system.