Working Theory

by Michael Reed

Me?

I do employment law for the Free Representation Unit.

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michael at workingtheory.co.uk

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Sitting Alone

17 February 2012

The Employment Tribunals Act 1996 (Tribunal Composition) Order 2012 will allow unfair dismissal cases to be heard by a judge alone.1 When it comes into force (probably the 6th April 2012) this will almost certainly become the normal position. Full panels will only hear unfair dismissal claims if they are linked to another claim that requires one. This will have the knock on effect that most appeals from unfair dismissal cases to the EAT will be heard by a judge alone (the EAT normally reflects the original tribunal).

There has been a lot of discussion about the merits and demerits of this change. Most people probably agree that there are advantages and disadvantages. In general, judges sitting alone will be faster and more efficient. Cases will get heard in less time and all the problems around reassembling the same three people for a renewed hearing or discussion will disappear. But the advantages of a collective decision making process, with discussion of the evidence and the case, will be lost. So will the lay members’ industrial experience. Finding the right balance between competing factors is difficult and reasonable people disagree about it.

In many ways, however, I don’t think we’ll know the true impact of the change for some time.

Unfair dismissal is an odd jurisdiction. Much of it comes down to concepts of ‘reasonableness’. What sort of sanction is in the range of reasonable responses? What does a reasonable investigation involve? What is a reasonable disciplinary procedure?

Most employment lawyers, judges and lay members have a common understanding of what ‘reasonable’ means. This has been constructed, since unfair dismissal was introduced by the Industrial Relations Act 1971, through a sort of dialogue between employers and employees, lawyers and judges. Much of this dialogue has been through the tribunal process – the accumulated wisdom of many tribunal cases and much appellate authority. Lay members, and their impact on tribunal decisions, have been an important part of this conversation.

On the 7th April 2012 our common understanding of what is reasonable will be the same as it is now. Over the next decade it will change. And part of that change will be because the lay member’s input will be absent from most tribunal and EAT decision making.

I don’t have any idea what the result will be. It may be that judges sitting alone will become more interventionist. Perhaps tribunals’ devotion to the ‘range of reasonable responses’ is, in part, because they need to reach common ground between themselves. Judges sitting alone might narrow the range, looking more at what they think the particular employer in front of them should have done.

On the other hand, judges sitting without an industrial jury and without their practical experience may become more reluctant to interfere with an employer’s decision unless it is obviously wrong. Or perhaps they will focus more heavily on procedural fairness, holding employers to high standards there, but only reluctantly interfering with the substantial decision. Or perhaps it will be something completely different.

None of this will happen overnight, but I suspect there are interesting times ahead.

  1. Thanks to @daniel_barnett for his update on the order and its commencement.

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