Speakers at our Employment Tribunals conference. Left to right: Judge Carol Taylor, Madeline Stanley, Sarah Veale (chair), Dr Jim Moher, Dennis McWilliams, Prof Susan Corby and Adrian Williamson KC.
On October 30th, the History & Policy Trade Union Forum welcomed around 30 guests to attend a well-timed conference marking 60 years since Industrial/Employment Tribunals were introduced. As the current Employment Rights Bill ping pongs back and forth between the Commons and Lords, it offered an opportunity to look back at how the tribunal system came about and its development over the last 60 years.
The conference posed the question as to whether the system in the 21st century delivers justice for workers. Whilst some challenged the view that the system ever did, the conference heard from six excellent speakers including a current Employment Judge, a practising barrister, a trade unionist who had wide experience of running tribunals and teaching lay representatives how to use them as well as an investigative journalist who highlighted the difficulties applicants face in getting awards that they had won at tribunal actually paid.
The conference kicked off with two excellent and informative presentations from leading academics in the field of employment relations. Emeritus Professor Susan Corby, Greenwich University, addressed the whole issue of ‘juridification’, the legalisation of tribunals, and described this process as being governed by legal rules – the growth of legal regulation since the 1960s and the infiltration of common law principles. She pointed to the switch from collectivism to the law as the means of resolving conflict and illustrated the growth in single claims and the thousands of workers covered by multiple cases. Increased judicial power, she asserted, had changed through the removal of lay members from many tribunals with many claims being heard by a Judge sitting alone.
Professor Corby gave comparisons of equivalent systems in Germany, France and Ireland, all of which had sustained at least a tripartite system, as the UK had in the early years of the tribunals. Addressing the issue of access to justice, she noted that the legal model asserts rights after a breach of law. This method assumes knowledge on the part of victims as to what their rights are and how to enforce them. However she pointed out that a third of applicants have no legal representation, despite research showing that claimants with legal representation are more likely to succeed. She acknowledged that the introduction of early conciliation had been a success and many applicants find the process helpful.
The conference then heard from Professor Adrian Williamson KC who put the existence of tribunals into context, going back to the early 20th century when questions were raised about whether the courts could deliver impartial justice in contexts of class conflict. Until the 1960s, the assertion of rights was only available through contract claims through the courts. Whilst the tribunals were introduced in 1965 they heard only claims on the industrial training levy and subsequently claims under the Redundancy Payments Act. Other minor issues were referred to the tribunals for resolution. It was the Donovan Commission in 1968 which recommended that all disputes arising between employees and employees should be resolved through “labour tribunals”. Donovan recommended “an easily accessible, speedy, informal and inexpensive procedure”.
Professor Williamson went on to describe the introduction of unfair dismissal claims in the Conservative government’s 1971 Industrial relations Act, an element of the legislation that was subsequently retained by the Labour Government in the mid to late 1970s along with the introduction of the Employment Appeals Tribunal (EAT). He identified the coalition from 2010 as an anti-union government which tried to introduce fees for tribunals. This concept was eventually struck down by the courts as illegal under both UK and EU Law. More recently in the beginning of 2024 the outgoing Tory government suggested it would re-introduce a modified version of fees but this was dropped following the 2024 election of a Labour Government.
This tour de force of an introduction to tribunals from both speakers set the context in which the conference heard from practitioners in the tribunal system. Firstly Dennis McWilliams, a retired officer of the CWU, gave a lively presentation his experiences as a trade union representative who had taken many cases on behalf of members, been an elected lay member of the tribunals and had set up and run training schools for elected CWU representatives to enable them to take cases to tribunals. Mr McWilliams had a strong belief in the use of trade union lay representatives and officers representing members tribunal and to this day it remains very much part of the CWU union culture to represent their own members whenever possible. He acknowledged that working in the Post Office there was a highly unionised workforce and prior to privatisation he was operating in the public sector. He felt strongly that the introduction of witness statements as mandatory was to the detriment of the system with many witnesses not really understanding their own statements when drafted by lawyers. He noted that in Scotland the procedure was different with an emphasis on witnesses presenting evidence in person.
Mr McWilliams outlined the process used by the CWU panel of representatives and that this panel would determine whether a member would receive union representation. He pointed to significant achievements in areas of age and health discrimination which often led to significant changes in general conditions of employment in the Post Office. Mr McWilliams painted a picture of enthusiastic representation which demonstrated the ability of trade unions to deliver justice through the tribunal system for its members.
The conference then heard from Madeline Stanley of Old Square Chambers, who had been representing trade union members and occasionally employers at tribunals for the past decade. Ms Stanley noted that, increasingly, legal representatives are specialists in employment law and able to find their way through the legalistic minefield of current employment legislation. She illustrated the cultural differences between employment tribunals and civil courts highlighting time limits, complexity of procedure and the longer time given to tribunals to consider the issues, leading to a much slower jurisdiction. She also pointed to the absence of cost awards in most tribunal cases, an obstacle in civil courts to individuals taking on large organisations.
Moving to the role of the legal representative Ms Stanley emphasised the rules of evidence, the routine for written submissions on law and that it was more difficult for non-legal representatives to access past legal decisions. There was also the benefit of professional privilege allowing advice given to clients to be protected. The impact and importance of case law in tribunals also made legal representation an advantage to applicants.
The conference then heard from Emiliano Mellino, an investigative journalist who had recently carried out research in conjunction with the BBC, into the enforcement of awards made by tribunals. His factual and evidenced-based presentation was an eye opener to the problems so many applicants have in accessing the awards made by tribunals. He explained the methods available to applicants to obtain enforcement, including County Courts and various government schemes introduced since 2010. Despite these schemes and court orders, employers had found many ways of avoiding payment, particularly small employers. Emiliano was able to share video evidence from real cases illustrating the substantial sums which never find their way to the victims.
The final keynote speaker was Judge Carol Taylor CBE, an employment judge with many years experience as a judge and as a Regional Employment Judge. Judge Taylor provided an insightful description of the work of tribunals and their structure and administration. Judge Taylor explained about the Reform Programme which had created a useful ‘virtual Region’ which enabled a small cohort of fee paid judges to take cases anywhere in the country. She also spoke about digitalisation providing increased efficiency for judges to access papers and case law. She stressed that through case management the tribunals had an overriding objective to be timely, fair and just.
Finally she described the various methods of alternative dispute resolution (ADR) which offered claimants ways in which to reach an agreed outcome without the need for a tribunal hearing. Judicial mediation for longer cases had a high rate of settlement success and this in turn meant more days available to judges to hear cases. The introduction of Legal Officers in 2021was designed to speed up the process and deal with the backlog of cases which has arisen. Looking forward, Judge Taylor raised the prospect of all hearings being recorded, leading to better reporting of their work. Greater use of ADR and reducing the size of bundles were also steps being looked at.
The Conference ended with a general Q&A session which comprised the speakers plus Dr Jim Moher who was responsible for setting up the CWU panel of tribunal lay representatives referred to in Dennis McWilliams’ presentation. During this session a wide variety of issues were raised. Overall the scope and expertise provided by the speakers provided a conference packed with history and present day practicalities of the Employment Tribunal system which offers a route to conflict dispute in industrial relations in the 21st century.
Roger Jeary
