Employment law and procedure: a critical analysis - Part 2
To reach a conclusion on this matter involved the court in wading through a monstrous legislative morass, staggering from stone to stone and ignoring the marsh gas exhaling from the forest of schedules lining the way on each side. I regarded it at the time, I must confess, as a Slough of Despond through which the court would never drag its feet but I have, by leaping from tussock to tussock as best I might, pale and exhausted, reached the other side. (Lord Justice Harman in Davy v Leeds Corporation (1964)).
In the early nineteenth century Jeremy Bentham made the following points:
Laws are expressions of the will of the human lawgiver. This is disguised by the fact that many laws are not expressed in imperative language.
The use by lawyers of language so complex and different from normal use serves three purposes:
It forms a bond among legal professionals, setting them apart from society and reinforcing their complacency and resistance to reform;
It increases their fees;
It creates an atmosphere of awe.
English law has a highly-developed and complex set of rules aimed at protecting workers against unfair dismissal. There is a clear general right not to be unfairly dismissed. If a worker is dismissed and she or he reasonably believes that they have been unfairly treated, then in theory they have the right, in some circumstances, to complain to an employment tribunal. If they belong to a trade union, then the union may pick up the costs of legal advice and representation and bear the risk of paying the other side’s costs.
The rules and procedures surrounding unfair dismissal have become so complex (essentially because of the involvement of lawyers and the adversarial nature of British justice, resulting in a mass of decided cases which interpret complex statutes) that it is very difficult for non-lawyers to exercise those rights themselves. For the non-unionised worker without money, it is almost impossible to exercise the right not to be unfairly dismissed. The procedural complexity of tribunal proceedings is daunting, and lawyers have made it worse. It should also be noted that the United States has no concept of unfair dismissal. The British legal profession has a duty to strongly resist possible deregulation in this direction.
Comments made by Lord Justice Pill in the case of Suffolk Mental Health Partnership NHS Trust v Hunt and Others (2009), in a case involving the level of detail which should be included in a written grievance related to an equal pay claim, were as follows:
The encouragement of negotiation, conciliation and settlement might be frustrated if grievance procedures led to satellite litigation on technical issues about whether a statement amounted to a grievance.
In the same case, Lord Justice Wall commented:
Employment-related issues which were designed to be simple and understood by ordinary working people had become overlaid with degrees of sophisticated argument which at times rendered them unrecognisable.
Employment tribunals were set up as fora in which ordinary working men and women could bring claims, which they had been unable to resolve in the workplace, with a view to swift and straightforward resolution. To this end, the rules relating to representation were very relaxed, case management powers were wide and costs were only to be awarded in extreme circumstances.
His experience was that these essentially worthy aims were in grave danger of being frustrated by over-elaborate and sophisticated arguments which were unintelligible to the layman.
His plea was that there should be a return to the clear intentions of the employment tribunal system; that lawyers should strive for clarity and simplicity and that unions and employers should strive to make the system work in the interests of ordinary working people.