Employment Tribunal: history and status
Employment tribunals (ET) were created as industrial tribunals by the Industrial Training Act 1964. Industrial tribunals were judicial bodies consisting of a lawyer, who was the chairman, an individual nominated by an employer association, and another by the TUC or by a TUC-affiliated union. These independent panels heard and made legally binding rulings in relation to employment law disputes. The jurisdiction and powers of these tribunals were very limited.
Under the Employment Rights (Dispute Resolution) Act 1998, their name was changed to employment tribunals from 1 August 1998.
When I started practice in 1970, industrial tribunal cases were a welcome change from Crown Court trials. Hearings were held in a committee room and were informal. There was very little pre-hearing case management. Procedure and evidence at the hearing was at the discretion of the chair.
The Report of the Donovan Commission in 1968 stated that the aim of the industrial tribunal (as it then was) should be to make available an easily accessible, informal, speedy and inexpensive means of resolving employment disputes.
On the contrary, increased legalism, which has inevitably accompanied the expanded role of lawyers in the employment tribunal, is virtually impossible to reconcile with the expressed expectation that employment tribunal hearings have always been suitable for self-representation or assistance by non-lawyers including trade union officials and advice workers.
One specific and little-known example of the excessive legalisation of employment tribunal proceedings was the emergence of advice to representatives to exchange legal authorities with the other side before the hearing. This would seem to be incomprehensible to the average claimant and does not appear to be based on any statutory authority. It is far removed from the original purpose and function of the tribunal, which was the informal resolution of employment disputes.
In 2014 fees were introduced for employment tribunal applications. This had the desired effect, from the government’s point of view, of significantly reducing the number of applications. In 2017 the Supreme Court declared that these fees were unlawful. The government was obliged to withdraw the fees.
In a case heard in 2009, the judge made the following points:
Employment tribunal proceedings were intended to be as short, simple and informal as possible
An over-rigid approach was not required when an employment tribunal was considering an application
We all know that that intention has not been fulfilled and that employment law and practice have become difficult and complex.
Employment tribunals remain, marginally, a maverick element of the English legal system. Despite respeated efforts by lawyers to bring them into the mainstream, they continue to retain residual elements of the tribunal rather than the court, with the aim of providing a quick and cheap resolution of employment disputes. There is no dress code and lawyers do not have an advocacy monopoly. It is not clear for how much longer this can continue. The role of the employment tribunal as a cheap, quick and informal means of settling employment disputes looks set to become a footnote in employment law textbooks.
The current status of the ET is illustrated by the case ofWatson v Hemingway Design Ltd, in liquidation.
W was dismissed by HD shortly before the company became insolvent. He had an insurance policy which would normally have covered the liability of HD, including employment tribunal proceedings. W applied to the ET to invoke third party rights under the Third Parties (Rights against Insurers) Act 2010. Section 2 of that Act allows a claim to be decided by a ‘court’. The issue was whether the ET was a ‘court’ for these purposes. The ET found that it had no jurisdiction. W appealed to the EAT.
The appeal was allowed. The ET often has to decide questions of general law as incidental matters to an employment issue.
The question whether the ET is a ‘court’ depends upon the statutory context.
The aim of the 2010 Act was to deal with claimants having to go to a tribunal and to a court. The way to implement that aim was to treat the ET as a ‘court’.