Recent events have turned the spotlight on the people sitting on tribunals, but it is not always clear where members’ allegiances lie
In November, Trade and Industry Secretary Stephen Byers announced measures to dramatically increase the powers of employment tribunal chairmen to penalise “spurious” applications. The plans were aimed at mollifying the concerns of employers who felt bound by red tape and that embittered staff were making claims just to waste time. On the whole, the package was welcomed, although the Federation of Small Businesses was among the dissenters that argued that it did not go far enough.
But there was one problem. In 1999-2000, tribunal chairmen awarded costs in just 1.7 per cent of cases. Did the Government plan its gesture to be an empty political sop to business? Or did it expect the new power to dish out £10,000 cost orders to be too much for tribunal chairmen to resist?
Time will tell. But we can gather that tribunal chairmen do not seem to share the conviction of businesses that the applications they are considering are, on current definitions, “unreasonable”, “frivolous” or “vexatious”.
Barry Mordsley, a long-serving part-time tribunal chairman in London, says the law on unfair dismissal – the single biggest claim – is rather pro-employer. “The test on unfair dismissal as it stands is whether the employer’s action was ‘within the range of reasonable responses’, not whether they acted unfairly. So, if an employer dismisses someone for misbehaviour and the tribunal thinks it does not sound so serious, the law is only whether it is ‘within the range of reasonable responses’. There is an argument that the test gives too much deference to employers.”
An absorbing contest is in the making. It is, in effect, in the judiciary’s gift to pacify the concerns of employers. But, independent from government as judges are, it is not a gift they will relish. “If there is no change, the issue will have to be revisited,” says Jadine Riley, senior employment policy adviser at the CBI.
Some believe it will be revisited sooner than expected. There is dark gossip among employment specialists that the Government may be considering doing something a little more dramatic with tribunals, something that looks less like tinkering with the current set-up. Nothing is confirmed but, according to some sources, the Government is thinking about a “loser pays” system, making the loser liable for the other side’s costs.
“I find it hard to believe the Government might do it because it would tilt the balance heavily against employees,” says David Cockburn, head of employment at trade union solicitors Pattinson and Brewer. “But that is what is being talked about.”
Trade unions would not be happy. But they have been unhappy about other recent changes made to tribunal operations. In addition to Byers’ recent conversion to the arguments of business lobby groups about spurious claims, trade unions feel aggrieved by changes to the system for appointing lay members to tribunals. They think amendments to the DTI’s recruitment process have made it difficult to be sure tribunals properly represent employers and employees.
Until recently, 95 per cent of the 2,100 individuals who sat on tribunals were nominated by the CBI and CIPD, acting on behalf of employers, and the TUC, acting on behalf of workers. Typically, a role on a tribunal, or, even better, the Employment Appeal Tribunal, was a kind of gong for trade union national officials and retiring personnel directors.
But during the last recruitment round, the Government changed the system to comply with the Nolan Committee’s guidelines on public appointments and encourage more applications from women and ethnic minorities (see panel). Recruitment consultancy KMC International Search and Selection handled the 21,000 inquiries and 9,000 applications.
And quite a dramatic shift resulted. No longer could employees’ and employers’ organisations stitch it up between them. Of the 330 most recent appointments, only a few were nominated by any of the organisations. In the case of the TUC, just 22 of 142 nominations have been appointed. The CBI has found that only 13 per cent of its candidates have been successful.
The great virtue of the old tripartite system was that everyone knew where tribunal members stood. But under the new process neither workers’ nor employers’ organisations are sure of the backgrounds of lay members; a senior manager may consider themselves “an employee”, but their allegiances and prejudices may be managerial, for instance. Under the new system, applicants are appointed to two panels, one for employees and one for employers, but, significantly, the DTI says “they are not required to represent particular interests”.
Sarah Veale, employment rights officer for the TUC, believes that no one can really know whom a tribunal member is representing. “We feel that this has robbed the tribunals of what everyone always said was important: practical experience of the workplace. No one knows the backgrounds of these people.”
CIPD employee relations adviser Mike Emmott says, “It remains to be seen if chairmen find themselves well-supported, but I do think the Government has taken a big risk.”
Douglas Fraser, managing director of KMC, defends the process. He says people put themselves forward to the two panels on a self-selection basis, references were taken and the candidates were interviewed against competencies drawn up by industrial psychology specialist OTL. A DTI representative and a retired tribunal chairman carried out the interviews. “If anyone felt the candidate was not credible for the panel they put themselves in, they would not go through,” he says. “But it was noticeable after a while that you could not tell which panel they were from. We were looking for independence and objectivity in getting to the truth.”
The appointments system to tribunals has also suffered a shake-up courtesy of the Human Rights Act – a piece of legislation that arguably affords anyone who is unhappy with the kind of justice they are receiving a greater opportunity to challenge it than ever before. The European Convention on Human Rights, which the act brings into British law, contains one particular clause that has had an impact on tribunals and could potentially be more far-reaching. Article 6, dealing with access to justice reads, “In the determination of his civil rights and obligations, or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
In Scotland, where the Human Rights Act was incorporated into the legislation on devolution in 1998, the clause has sparked intense debate. One notorious case, Starr and Chalmers, caused anxiety that the tribunal system could suffer a barrage of challenges under the Human Rights Act, and prompted a UK-wide review by the Lord Chancellor of the system of lay appointments.
The case established that the ability of the Scottish Lord Advocate to appoint and remove temporary sheriffs compromised the independence of the judiciary under Article 6. The problem was that much the same complaint could be levelled at the procedure by which the DTI appoints the members of the 24 employment tribunals.
So, during last spring and summer, the Lord Chancellor, Lord Irvine, trawled through dozens of tribunals making amendments to increase the security of tenure of members and thereby reduce the risk of complaints of political interference. On employment tribunals, lay members would be automatically re-appointed unless there were accusations of gross misconduct.
The anxiety subsided. Other Article 6 challenges fell. The DTI expressed satisfaction that, by reducing the turnover of members, the rest of the system would not need further reform. But the episode served as a wake-up call that the people dishing out workplace justice were far from untouchable.
David Leckie, an employment partner with Scotland-based law firm MacKay Simon, says, “With the Human Rights Act now in force, there is far greater scope for enterprising lawyers to challenge the administration of justice. If there are doubts about the prejudices tribunal members may have – if they are a Mason, too pro-employer, or too trade union, for instance – they may decide it is worth a go, although the courts have taken a rather robust attitude to HRA challenges in Scotland so far.”
As a pre-emptive measure against further Article 6 challenges, the Scottish Executive will also grant legal aid for complex tribunal claims from 15 January. “A chancer’s charter” is what the CBI in Scotland called it.
The Federation of Small Businesses takes a more sanguine view. Bill Knox, the federation’s employment spokesman, who served on the Acas council for more than eight years, says, “Legal aid payments have dropped dramatically over recent years, so I’m not sure it will increase the number of cases that much. It depends on the criteria.”
Much of the detail will depend on the proposals of the Scottish Legal Aid Board. “We don’t expect a majority or even a substantial minority of claims will attract legal aid,” a spokesman for the Scottish Executive says.
In all, it has been quite a year for internal reforms to tribunals. If claims continue at the current rate, future years could be equally busy for chairmen and members.
TRIBUINAL FACT FILE
Full time Chairmen Part time
76 women 206
8 ethnic minority 40
4 disabled 5
Tribunal lay members
There are 2,100 lay members of tribunals, appointed by the DTI. They are appointed against public selection criteria taking in factors such as being of good character, able to reach a balanced judgement, the ability to command respect and be available for a 15 sittings a year.
Of the total number:
32 per cent are women.
l 7 per cent are from ethnic minorities.
l 7 per cent are disabled.
Half are drawn from the 30-59 age group.
Half are drawn from the 60-69 age group.
Of the most recent intake of 326 individuals:
54 per cent are women.
17 per cent are from ethnic minorities.
18 per cent have had experience of working with a disability.
Eligibility criteria and how they are appointed
- Tribunal chairmen are appointed by the Lord Chancellor.
- They must be seven years qualified, aged between 35 and 62, should have “satisfactory sight and hearing” and be able “to sit and concentrate for long periods of time”. The eligibility criteria also says they should not have any criminal records, any complaints which have been upheld against them or anything else that “may be a source of embarrassment to themselves or the Lord Chancellor” in their past.
- In common with other judicial appointments, before making the decision there is a system of informal consultation with peers. “The Lord Chancellor will have regard to the comments (which are given to him in confidence) received from judges and members of the profession who have been consulted about the individual’s qualities and suitability for appointment.”
- As well as legal knowledge, experience, intellectual ability, sound judgement and communication kills, chairmen must also exhibit decisiveness. “The ability to reach firm conclusions (often at speed), to think, decide and act independently and to rely on his or her own judgement in due consultation with other members of the tribunal.” And authority: “The ability to promote expeditious despatch of business, preventing unnecessary prolixity, repetition and irrelevance whilst ensuring that all participants (whether represented or not) are enabled to present their evidence as fully and fairly as possible.”
- The criteria also detail the personal qualities of successful candidates. They should have integrity, fairness, understanding of people and society, “maturity and sound temperament” and be committed to public service. “They will have and convey understanding of, and sympathy for, the needs and concerns of tribunal users as appropriate and be sensitive and humane.”