Claims that ‘inexperienced’ individuals are being hired as fee-paid employment tribunal judges and that a ‘free-for-all’ ensued after tribunal fees were abolished have been met with a barrage of criticism.
According to an article in the Times, “trade union and town hall” lawyers are among 59 new employment tribunal judges that have been recruited by the judiciary to help handle an estimated 40,000 cases still awaiting a hearing.
The article claimed that “the bar was lowered” on recruitment standards, with a source telling the paper: “Some people have been appointed who have never sat before. It was certainly a departure. It is quite a stretch for somebody to be thrown in immediately as a full-time judge.”
An accompanying piece is particularly critical of the appointment of barrister Natasha Joffe, despite her experience dealing with mass equal pay claims and who has represented public bodies and trade unions in discrimination and whistleblowing cases.
The paper also claimed that judges were allowing “irrelevant” evidence to be heard, which dragged out cases and worsened the backlog, while judges are reluctant to dismiss weaker cases without a hearing.
It suggested cases rose rapidly and that there was a “free-for-all” after tribunal fees were ruled unlawful by the Supreme Court in 2017.
A spokesperson for the Judiciary said: “Where appointments are made without pre-judicial experience candidates will have met the selection criteria with material equal to that of their judicial colleagues.
“Regardless of previous background all judges receive extensive, high-quality training incorporating local orientation and induction training as well as a two-day cross- jurisdictional course for all new judges. In addition, all judges complete an annual mandatory two-day course.”
The coverage received strong criticism from the legal sector, with many suggesting it was an inaccurate representation of how recent judges had been recruited and their experience.
Rigorous selection process
Employment law consultant Darren Newman said it was inevitable that newly recruited judges would not have previous judicial experience.
“The selection process is known to be rigorous and those appointed will have extensive experience of employment law and the system. I’ve been around for a while and I remember in the early ’90s it was common for a tribunal chairman to have no experience or knowledge of employment law at all. Now they tend to be employment law experts and that’s all to the good,” he told Personnel Today.
The selection process is known to be rigorous and those appointed will have extensive experience of employment law and the system” – Darren Newman, employment law consultant
Barrister Jeremy Scott-Joynt said the suggestion that fee-paid judges were inexperienced was “idiotic”, as they all must begin in a part-time, fee-paid capacity before they become a full-time salaried employment judge.
He said in a blog post: “The overall impression of this piece, that employment judges being appointed are somehow substandard, is simply wrong, and unfair to the individuals named – perhaps bordering on the defamatory in some cases.
“It tells a one-sided story, ignoring vital context, and thus gives a supremely misleading picture in all but one respect. That one thing is that the system is overburdened; but that’s not the fault of ‘inexperienced judges’. It’s the result of political decisions coming home to roost, to everyone’s cost.”
Reporting on the wrong cohort?
Employment barrister Jason Braier suggested that the article referenced judges who were hired in 2019, following a recruitment campaign in 2018 that included people without prior judicial experience.
He tweeted: “The piece starts by railing against the appointment of full time judges lacking any judicial experience. Erm, that’ll be the 2019 cohort then, where no prior experience was necessary. Strange to report on that in 2021.
“Many of us will have been in front of salaried EJs who had no previous judicial experience. In my experience, the 2019 cohort have been uniformly excellent. But the author (Dominic Kennedy) is particularly concerned with trade union & town hall lawyers.
“That seems a bit patronising to me. I’m not sure who from the trade union or town hall career paths were made up to salaried EJ, but I can think of a number of those who instruct me fitting those descriptions whose legal knowledge & analysis is particularly impressive.”
1/ A really odd hatchet job on employment tribunals in today's Times. Its purpose is unclear though I worry it might be part of the "we should reintroduce employment tribunal fees" PR campaign. #ukemplaw https://t.co/cq0dKkXjAc
— Jason Braier (@JasonBraier) February 1, 2021
One person who commented on the Times article claimed it “played fast and loose with the truth” and said the fall in cases following the introduction of tribunal fees in 2012 led to courts being shut down and employment judges leaving the profession.
The commenter said: “That we are now so short of tribunal judges is a reasonably foreseeable consequence the journalist chooses not to address in his piece because, horror of horrors, it might just lead to the conclusion that the Tory government created the problems we now have in hearing cases by acting entirely illegally in denying access to justice in the first place as the judgment of the Supreme Court made clear on 26 July 2017.”
Newman said the delays in cases being heard were not just caused by a lack of judges, but underinvestment in the tribunal system and its buildings, as well as the sheer number of people being dismissed from their jobs.
“The recruitment of new judges is welcome, but will not solve the problem if they do not have the resources to run the system properly. Talk to any barrister to hear nightmare stories of hearing centres being closed, leaking roofs, poor ventilation or heating,” he said.
Newman also responded to the article’s claims that tribunals were hearing irrelevant evidence and cases with no reasonable prospect of success, by pointing out that it was often difficult to determine what is relevant or not at first glance.
“The refusal to throw out hopeless cases is regularly trotted out by those opposing the system or advocating for fees. Tribunals do throw out cases with no reasonable prospect of success. But how are those cases to be identified? It might seem obvious to an outsider reacting to a one-sentence summary of the case – but it is usually more complicated than that,” he said.