Employment law and tribunals: a critical analysis - Part 5
Employment tribunal procedure
The Report of the Donovan Commission in 1968 stated that the aim of the industrial tribunal (as it was then known) should be to make available an easily accessible, informal, speedy and inexpensive means of resolving legal disputes. Increased legalism, which has inevitably accompanied the expanding role of lawyers in the employment tribunal, is impossible to reconcile with the expressed intention that employment tribunals are suitable for self-representation or assistance by non-lawyers including trade union officials, members of employers’ associations or advice workers. Current issues of concern in relation to employment tribunals include the following:
Unbalanced or unequal hearings where one party (normally the employer) is represented whereas the other party is not.
Efforts by lawyers to characterise employment tribunals as courts, for example the publication of the Employment Court Practice, an attempt to create a parallel to the Civil Procedure Rules and to characterise the tribunal as a court. There is, in reality, no such thing as an employment court. An example of the judicial approach to this issue is the comment by Lady Justice Smith in 2009 that the Civil Procedure Rules did not apply to the employment tribunal; that civil court practice differed fundamentally from tribunal practice and that we all knew that employment law and practice had become difficult and complex.
The role of the employment tribunal as a cheap, quick and informal means of settling employment disputes looks almost certain to become a footnote in textbooks. Political pressure to reduce the number of applications has fundamentally changed its ethos. Employment tribunals remain as a marginal element of the legal system. Despite desperate and calculated efforts by lawyers to assimilate them into the mainstream, they continue to retain residual elements of the tribunal system. There is no dress code, no advocacy monopoly and relative informality. It is unclear how long this can continue.
Litigants in person
Most intelligent, reasonably articulate, literate and averagely educated people can make a start on legal proceedings themselves. They can draft letters, fill out forms and prepare witness statements. But as court or tribunal proceedings roll along, they find themselves increasingly trapped in a fog of procedural technicalities. These have been reformed and simplified but they remain hugely difficult to cope with, especially when the litigant in person is up against ruthless and experienced lawyers. As a county court judge is reported to have commented to an unrepresented claimant in an industrial injury case, you have plunged into the icy waters of English legal procedure.