Anyone who feels oppressed by the volume of tribunal claims should take a quick look across the English Channel
What a model example of acquiescence the British employee is. In 2002, the mighty German arbeiter complained no fewer than 607,467 times to the first tier labour court in a workforce totalling just over 38 million people. The wily French emploi mustered 175,940 denunciations of employers at the Conseil de prud’hommes in a workforce of 24.8 million. The proud Spanish obrero fumed against their boss no fewer than 199,001 times from a workforce of 16.5 million. But the British, well, we don’t like to grumble when all’s said and done, because, well, it doesn’t go down too well, and there’s no point getting upset.
Oh yes, we complain a bit more than we used to. In 2002-03, we took 17 per cent more cases to employment tribunals than the year before – a total of 115,042 applications in a workforce of 26 million (the total fell for two years before that). Yet many of these new cases were about the eminently fogeyish cause of whether obliging male staff to wear ties in Job Centres amounts to gender discrimination; and, in any case, we usually settle or withdraw almost three-quarters of our claims before getting anywhere near an actual hearing.
It is not always easy for British employers to appreciate their good fortune at the relative peacefulness of working life. In other major European countries, the system for enforcing individual rights at work does not stimulate passionate feelings – to the extent that many governments do not even gather statistics on the details of the quarrels. Here, of course, days lost to strike action reached a new record low this year, so as a consequence, the rise in tribunal applications is to employment relations what the Kennedy assassination was to the 1960s.
Outwardly calm and agreeable people turn demented class warrior at the mere mention of that dull word ‘tribunal’.
“With the compensation culture spiralling out of control, companies do not have confidence in the current tribunal system,” believes John Cridland, deputy director general of the CBI.
Some HR practitioners even adopt the contemptible whinge that they are the system’s ‘real victims’. Perhaps a little more detail might help tranquillise them.
In the UK, the Employment Tribunal Service registers the biggest single complaint as unfair dismissal (after unpicking claims under multiple jurisdictions). In 2002-03, there were 38,612 applications for unfair dismissal. Ten years ago, way back in 1994, there were 38,597. In the intervening years, the total has gone as high as 44,538. But spotting a trend is made more complicated by the fact that the Government cut the qualifying period for unfair dismissal rights in June 1999 to one year from the Tories’ two, thereby granting 2.8 million additional workers new employment rights. As far as the UK’s most significant employment right is concerned, therefore, it is very hard to see too much spiralling of compensation going on.
Now compare Britain’s 38,612 with unfair dismissal in the admittedly very different legal cultures of Germany and France. In Germany, 296,609 complaints of unfair dismissal were received in 2002. In France, 170,456 employees claimed they were unfairly dismissed.
Despite all the heat and noise from British employers, the raw numbers of tribunal applications are really as dry as an autumn leaf in conference season. Individual rights cases have risen across Europe for a host of reasons in recent years – but far from remarkably so in Britain. No, the real issue remains whether an increasingly legalistic tribunal system is the best means of sorting out rows between employees and employers.
Unquestionably, dissatisfaction with tribunals is on the rise, with the system’s detractors becoming more vociferous by the day.
Employers feel they are financially penalised whatever they do, what with lawyers, insurers, and go-away money – though in truth they would resent all encroachments on the manager’s right to manage.
Employees know that the odds of a successful outcome are heavily stacked against them, and that the compensation they will receive is likely to be far too low to make up for the huge emotional strain of bringing a claim – so they resolve to cause as much destruction as they can.
Trade unions would much rather sort things out in the traditional backroom, deal-making kind of way. But they do recognise that tribunals can be a tasty way to prove a point.
Meanwhile, all parties unite in their collective animus toward the system’s victors – the lawyers. Bodies that were originally set up to administer swift, informal workplace justice appear to be turning into the playgrounds of Pharisees, they say. Once the lawyers get to work, the idea of objective justice is quickly twisted into a malleable, interest-relative substance that feeds on enmity and revenge.
Anyone who has ever attended a tribunal will understand that some of this criticism is well founded.
Yet it remains the case that no one has yet proposed a better way of resolving workplace disagreements. Binding arbitration from Acas is available, but thus far the offer has been taken up on just 47 occasions since April 2001 – not an indication of massive demand.
New grievance and discipline rules also come into force next month. Few think they will have much effect. Sooner or later, someone will doubtless suggest a system of Platonic guardians, roving workplace justice dispensers, or independent ombudsmen as a simple way to end disputes.
But for now, whatever their flaws, tribunals are here to stay. They are, surely, a better way of sorting things out than going on strike. Just for once, it might be nice if employers stopped quarrelling with the sun for shining on them.