Why we need judges to have discretion
06 May 2015
Cranwell v Cullen is a classic example of why absolute procedural rules are a menace.
As all employment lawyers know, to bring most claims in the employment tribunal, you must first contact ACAS, in order that Early Conciliation might occur. You don’t actually have to engage with conciliation – and neither does the employer – but you must complete the form.
Unsurprisingly a significant proportion of the public does not know this.
Maybe that’s why, when Ms Cranwell wished to bring a claim against her employer for sexual harassment, she did not contact ACAS. Perhaps she wasn’t aware of the requirement at all. Perhaps she assumed that where conciliation was obviously pointless there was no need.
Perhaps she assumed that there was an exception for claimants who were alleging that they had been physically assaulted by their employer.
She was wrong. That’s not what the law says. And therefore Cranwell v Cullen is a sorry account of her being told that, first by the tribunal Judge and then by the President of the Employment Appeal Tribunal.
Both of them, in my humble opinion, are absolutely right about the law. There simply is no discretion. As the President notes ‘The question … is not one of sympathy; the question is one of the law which is applicable.’
But the law itself is wrong. It’s wrong in the specific. Nobody who has suffered serious sexually harassment should be forced to start a conciliation process that will inevitably bring them into contact, albeit indirect contact, with the person who harassed them.1
But it’s wrong in the general as well. Judges should be there to apply judgment. It’s right there in the name.
The Employment Judge should have been able to say ‘There is a rule. You haven’t followed it. But this is obviously an unusual case and having considered all the facts I’m going to let you continue.’ He couldn’t do that, because the rule doesn’t allow any discretion. That is wrong, because there are always unusual or exceptional cases where the normal rule will create unfairness or injustice. Judges are there to identify those circumstances and to make sure fairness prevails. The rules have to give them space to do so.
It’s worth noting that the Statutory Dispute Resolution Rules were actually better on this. Regulation 11 of the Employment Act 2002 (Dispute Resolutions) 2004 provided an exception where there had been harassment and the claimant reasonably believed that complying with the procedure would lead to further harassment. ↩