Enterprise and Regulatory Reform Bill

Memorandum submitted by David Bleiman (ERR 14)

Written evidence to Public Bill Committee – Enterprise and Regulatory Reform Bill 2012

Composition of the Employment Appeal Tribunal: how judges sitting alone would be a disaster for employers and employees alike

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. Appeals on employment law are set in the context of employment practice. 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 issued by the EAT, which is binding on the whole employer community, is checked for its practical impact, employers will find that judges sitting alone will be telling them how to run the people management side of their business. Sooner rather than later, the EAT will lose the respect of the communities of employers and their employees. More cases will be taken to the Court of Appeal. The laughable prospective saving of no more than £300K per annum which is the main rationale for persisting with 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 office, factory or shop.

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, like it or lump it. 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. Without lay members there will be a loss of confidence – especially, perhaps, among employers -when they realise what they have lost.

6. 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. A court that loses the respect of society becomes a fiasco – like the predecessor National Industrial Relations Court which had to be abolished in 1974. What would be the fate of a "judge alone" EAT? Would it be a proper Tribunal? Would it be a proper appeal court? Would the decisions of a single lawyer on complex matters of employment practice, carry respect or would everything be appealed upwards to a panel of judges at the Court of Appeal?

7. 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. I suggest that 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…

No, this is not a typo. The saving is estimated at less than £300K a year! Something above £150K. Probably. For reasons explained below it is actually more likely to end up costing money.

8. Why is it essential to reconsider the proposal?

Although some employers may not yet have grasped what Clause 11 would do, it is not the case that employers really want judges, with no necessary experience of the world of work, to be telling them how to run every aspect of the employment side of their business – what is fair and unfair, what is and is not discrimination, what is adequate redundancy consultation and so on.

Yet that is what judge alone means! The experienced HR Directors, Board members, CIPD Fellows who have, for forty years, explicitly brought their experience of representing employers to bear in making good case law, will simply be ditched. The EAT will be pure and simple law, like any traditional court where a judge sits (without a jury). The benefits of industrial experience will be stripped away and employment law will be imposed in a nakedly legal way.

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

Will there really be a saving? It looks extremely unlikely. Judgments of a single judge sitting alone will be much more vulnerable to appeal than judgments of a panel of 3, including experienced lay members. Many parties will be more inclined to take their chances at the Court of Appeal, where three judges can be asked to overturn the view of one at the EAT below. The Court of Appeal will indeed be more likely to overturn EAT Judgments as they will be freed of their current reluctance to second guess the experienced assessment of an industrial jury. The Court of Appeal’s respect for the role of lay members is a matter of record. Senior Judges are somewhat less reluctant to find that their colleagues in the courts and tribunals below have fallen into error.

David Bleiman, MA, MBA, Chartered Fellow CIPD

Lay member, Employment Appeal Tribunal

June 2012

Prepared 26th June 2012