Enterprise and Regulatory Reform Bill

Memorandum submitted by million+ (ERR 13)

Composition of the Employment Appeal Tribunal: judges sitting alone

Summary: Clause 11 purports to deal with a problem which does not exist. There are no delays at the EAT and the vast majority of cases are already sifted out before the full hearing with lay members stage. The EAT does not offer the opportunity for a full re-hearing with appeals limited to points of law, time-limits set for hearings and procedural points already heard by EAT judges sitting alone. Appeals on employment law are set in the context of employment practice and lay members bring a practitioner expertise which judges lack. Without the HR Directors, Board members and CIPD Fellows who, for forty years, have ensured that the guidance and Judgements issued by the EAT are also considered in the context of the experience of the workplace, employers are unlikely to achieve the benefits from judges sitting alone that have been claimed.

Bearing in mind the current composition of the judiciary and the pace of change in respect of the latter, Clause 11 will effectively deliver an EAT which is predominantly judge-led and in which an all-white, principally male judiciary will preside. This has important implications for perceptions of equality among appellants and respondents which is not remedied by the limited proposal to provide for some lay member involvement in discrimination cases. It is the inclusion of the lay EAT members which principally ensures that cases are heard by women, black and ethnic minority and disabled lay judges with experience of the workplace.

The rationale for the proposal is primarily one linked to cost with savings anticipated to be no more than £300,000 per annum. However, there is a clear risk that more cases will be taken to the Court of Appeal and the anticipated savings of no more than £300K per annum which appears to be the main rationale for the proposal, will not be realised.

1. Introduction

Clause 11 of the Enterprise and Regulatory Reform Bill 2012 proposes that, as the default position, proceedings before the Employment Appeal Tribunal (EAT) are to be heard by a judge alone. The EAT lay members – HR Directors, union officials and others highly experienced in employment relations- submitted a detailed, reasoned response to the Government’s Resolving Workplace Disputes consultation. This individual submission by one lay member who has served on the EAT from 2002 to date does not repeat that submission but focuses on the remaining dangers posed by the current Clause 11 proposal.

2. Are lay members unnecessary because appeals are on a point of law?

There is a tendency to regard the lay members as mere window dressing in a tribunal whose jurisdiction is limited to appeals on points of law. Nothing could be further from the truth. Their role has been, and still is, crucial because the presiding judge knows nothing of the practicalities of industrial relations. Even on a pure point of law, when it is uncertain what the law is, it is the lay members who can give guidance on the practical repercussions of any particular decision. On matters of good industrial practice…the contribution of the lay members is much greater and often decisive.

Mr Justice Browne-Wilkinson, then President of the EAT, address to the Industrial Law Society, 1982.

3. There is no problem of delays or excessive use of lay members.

There is simply no problem of delays at the EAT and a very rigorous sifting of cases by judges means that, already, only about 20% of cases need to go to a full hearing. The use of lay members is already efficient, making good use of their expertise. The change purports to solve a problem which does not exist.

4. Appeals on employment law are set firmly in the context of employment practice.

What the wider community of employers and employees consider to be good practice, or within the band of reasonable practice, is often critical. Lay members with their specialist experience of the world of work make an invaluable and irreplaceable contribution. Judges know about the law but may know little of working life in factory, hospital, distribution centre, the service industries or SMEs.

5. The loss of practitioner expertise to inform guidance binding on the whole employer community

Lay members bring an expertise in good practice in HR and employment practice which informs the quality of the judicial guidance to the wider body of employers, contained in EAT judgments. EAT, as an appeal court, sets binding precedents and often issues judgments which have to be adopted by employers, on the advice of their HR Directors and legal advisers. As things stand, employers can have confidence that this guidance is informed by experts from their own community – including many with Board level experience and CIPD qualifications. These expert practitioners, alongside those with a similar level of expertise from the union perspective, can remind the judge of the practical impact of EAT rulings on the workplace. This makes for better law and better employment practice. Employers and claimants understand and can be confident that their case has been heard by lay judges who have significant knowledge and experience of the workplace.

5. The loss of respect of the appellate tribunal.

The EAT has the longstanding respect of employers and unions who generally adopt and abide by its decisions. The predecessor to the tribunal system, the National Industrial Relations Court, was abolished in 1974 because it had lost credibility. There has been no serious suggestion that the EAT as currently composed lacks credibility or authority – in fact the opposite is the case.

6. The thin rationale for Clause 11

In November 2011 the Government Response to the Consultation was issued. The government acknowledged that many stakeholders were opposed to judges sitting alone at EAT but detected the support of a "slim" majority of consultees. Counting the numbers is less significant than considering whether, in the light of submissions, the rationale for change remains persuasive.

The main argument put forward for pressing ahead with the change was that:

Lay members cost the EAT around £300K a year, and this proposal is likely to save the majority of that…

For reasons outlined this fails to consider the possibility that more cases would be subject to appeal beyond the EAT to the Court of Appeal where there is a backlog and which involves three members of the judiciary.

7. Why is it essential to reconsider the proposal?

Clause 11 would mean that judges, with no necessary experience of the world of work, would be making decisions alone on the full range of employment claims without the benefit of the experience of HR Directors, Board members, CIPD Fellows and employee representatives who have wide-ranging experience of managing industrial relations in the workplace, representing employers and employees / workers. The benefits of this experience will be stripped away and employment law will be left to judges sitting alone. Moreover, it is often not appreciated that the majority of judges who sit in the EAT do not sit full-time and come in from ‘the circuit’ and that there are only two full-time EAT judges at any one time including the EAT President.

8. Will the de minimis financial saving even be realised?

No assessment has been made of the risks that Judgments of a single judge sitting alone may be more vulnerable to appeal. Parties may be more inclined to take their cases to the Court of Appeal, where three judges will then be asked to consider and potentially overturn the view of one judge at the EAT. The Court of Appeal will not have to consider that EAT Judgments have been reached following a hearing in which an experienced industrial jury has assessed the case. The Court of Appeal’s respect for the role of lay members in the EAT is a matter of record.

June 2012

Prepared 26th June 2012