In April 2012 the UK Government introduced reforms allowing unfair dismissal claims to be heard by an Employment Judge sitting alone (rather than with the usual two wing members). The Employment Appeal Tribunal has recently expressed reservations about this change, echoing the thoughts of 62% of the respondents to the Government's consultation on this proposal. Do the objectors have a point or are Tribunal wing members an unnecessary expense when it comes to unfair dismissal claims?
The two wing members have traditionally been argued to offer an inside viewpoint on what is (and what is not) acceptable in the workplace as a matter of practical rather than legal reality and to add balance as the “industrial jury” to the tribunal process.
However, by not having wing members, approximately £350 per case can be saved in their fees alone (not to mention their expenses and the administrative cost of wing members’ selection). On the basis that there were 7,758 unfair dismissal claims heard by Employment Tribunals between April 2011 and April 2012, the reforms could result in an overall saving of up to £3.5million per annum.
The Government also says that the presence of wing members increases costs by slowing down proceedings. For instance, the Tribunal has to go at the speed of the slowest reader/writer of the three members, there is always the possibility of Judges needing to explain complex points of law to wing members and there are inevitably delays associated with co-ordinating three peoples’ diaries when trying to arrange reconvened hearings for part-heard cases.
In addition, under the old system, an Employment Judge could be overridden by two legally unqualified wing members. If overriding does occur, a lack of legal certainty is arguably created as wing members will generally sit on far fewer cases than a Judge. Against that, if both the wing members hold a view contrary to that of the Judge, perhaps it is the law or the Judge’s interpretation of it which is the issue!
It should also be remembered that case management discussions, pre-hearing reviews, claims relating to unlawful deductions etc., are already heard by a lone Employment Judge. Many County Court and High Court cases, often involving more complex areas of law, are also often heard by a single Judge. It seems odd at first sight that Judges in these situations are viewed as not requiring assistance and yet in some unfair dismissal cases (which are generally relatively simple cases involving the application of well-established rules) there is a lack of confidence in their ability to act alone. Perhaps this is because so much of employment law revolves around reasonableness, a concept driven in large part by good industrial (rather than legal) practice.
Finally, it should be borne in mind that whilst Judges are now able to sit alone, they are not required to do so. The Judges themselves can ask for a panel to sit in on a case or the parties can request one.
Whilst concerns regarding the removal of the "industrial jury" are entirely understandable, on balance the money previously spent on wing members could perhaps be better used in preventing unfair dismissal claims even making it into the Tribunal system in the first place. Better training or advice for management staff, and increased support for alternative forms of resolution may aid the establishment of a preventative rather than restorative justice.