Archive for February, 2020

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.

Employment law and tribunals: a critical analysis Part 4

Employment law and tribunals: a critical analysis: Part 4

  • Information technology

There is a movement, fortunately not currently particularly successful, towards the replacement of lawyers with information technology. A group of academics appears to be furthering their careers from prophesying the end of lawyers and the triumph of computers. This movement largely ignores the reality of everyday legal practice, which is essentially about relationships between human beings. Perhaps some areas of legal work in the commercial or conveyancing field can be transferred from people to machines, saving workers from lives of drudgery. But any lawyer who has practised in the fields of, for example, crime, family or employment, will know that their work is all about human beings and not about machinery. A very clear, and not unusual example, is that of a worker who has been made ill by workplace conditions including the overuse of computers and emails.  Given the professional duty to act in the interests of the client, it is clear that the last thing that such a client needs is to be referred to a machine for advice. Machines, at least at present, cannot deal with emotional communication and are unlikely ever to be able to offer a tissue for drying tears. Those who advocate the end of lawyers and their replacement with machines appear not ever to have advised clients who have lost their jobs in highly stressful circumstances and who need to tell their story to a professional adviser. The day may come when computers can offer counselling services. It has not yet arrived.

Another aspect of the movement towards the computerisation of legal services is the apparent failure to recognise that hardware and software can break down. The clearest current example of this is the repeated failure of information technology related to communications between prisons and the criminal courts. Often, the reality is that the systems simply don’t work. Any criminal practitioner is aware of the intense frustration and waste of court time caused by this inefficiency. To react to this by arguing that the technology will soon be perfected is to avoid the reality of the present imperfections of computer hardware and software, the vagaries of electricity supply and the recognised, and excusable, inadequacies of information technology operators.  

  • Disability discrimination

There are an estimated 6.5 million disabled people in the United Kingdom. There is evidence, anecdotal and statistical, of discrimination against the disabled. If ever there was a need for a clear set of rules, it is in the context of  protecting the rights of the disabled.

The current law dealing with disability discrimination is set out in the Equality Act 2010. This Act replaced the Disability Discrimination Act 1995, but many of the cases decided under the 1995 Act continue to apply. The legislative provisions, it is fair to say, are so opaque and convoluted that non-lawyers and lawyers alike face extreme difficulty in grasping their meaning. It seems, without confidence of accuracy, that there are five, or perhaps six, types of disability discrimination. Each of these has a separate and complex definition. Identifying the type of discrimination which applies in a specific case requires a major effort of library research and analysis.  It is simply not realistic for most disabled persons who are not lawyers to bring their own proceedings. Lord Justice Sedley commented, in a disability case, that the law in its present form was not at all easy to follow. This was a particular misfortune in an Act which it ought to be possible for employees and managers to read, understand and implement without legal advice or litigation.

Harvey on Industrial Relations and Employment Law, the leading employment law book, has more than 50 closely printed and argued pages of text dealing with disability discrimination in employment. The editors of Harvey describe the legislation as unusually complex and posing novel questions of interpretation. They state that a proper understanding of the law requires a close study of its structure and technical detail. A commonsense approach is simply not sufficient and, in many cases, is likely to be positively dangerous if taken as a guide to proper behaviour.

Disabled employees who are non-lawyers, for whose protection the law of disability discrimination exists, are effectively prevented from understanding the rules. They are obliged to seek legal advice, often at ruinous cost, in order to understand their rights.

Employment law and procedure: a critical analysis Part 3

Employment law and procedure: a critical analysis Part 3
Workplace stress
As well as legal duties under statutes and regulations, employers have obligations under duties imposed by the common law. These duties are essentially judge-made and consist of a mass of decided cases. With reference to work-related stress, one of the positive points about the English common law is that it is prepared to compensa te people who have been driven mad, to use a colloquial term, by workplace conditions. English judges have created a rule that mental illness caused by employers can be treated in a similar way to physical injury. Cases of, for example, bullying, harassment and exploitation at work, where a recognised psychiatric illness has resulted, can lead to victims obtaining compensation. The leading case on work-related stress is Hatton v Sutherland and Others (2002). Lady Hale’s judgment in this case extends to almost 30 pages of the report. There are no Latin words or phrases in the judgment. Lady Hale deals with a case with complex facts in a difficult area of law. The judgment examines and analyses psychiatric illness in general, defines and describes workplace stress and goes on to explain the relevant law. Anyone with an interest in work-related stress should be advised to read this judgment in its entirety. It can safely be recommended to non-lawyers: a rarity.
Costs warnings
Before lawyers turned the employment tribunal into a quasi-court, costs were not an issue in that tribunal. The general, almost universal, rule was that the losing party in an employment tribunal matter, unlike a claim in the civil courts, was not at risk of having to pay the other side’s costs. This principle has been gradually eroded by legislation and lawyers’ practice. The current position is that large firms of solicitors, normally acting on behalf of employers, have a standard practice of issuing costs warning letters to employee claimants in the tribunal. The standard form of these letters is a statement that the claim has no merit, is unreasonable and is bound to lose. The inevitable result of such a defeat, states the costs warning letter, is that an application will be made for payment of the winner’s costs. This can be a frightening threat. Given that large firms of solicitors may charge £300 an hour for their time, costs threats of £20,000 are not unusual. For claimants who are unemployed, or perhaps disabled and have very little money, the costs warning may well succeed in dissuading them from carrying on. This, of course, defeats the whole object of employment tribunal proceedings, which at one time were an informal and low risk means of workers enforcing their rights. This ethos is rapidly disappearing. The money imperative is increasingly used by employers to prevent employment tribunals deciding claims on their merits. Justice in the employment tribunal is following the civil courts in being subordinate to the rich and powerful.
Non-disclosure agreements
When employment tribunal claims are settled by negotiation, normally by a reasonable sum of money changing hands from an employer to a worker in return for a claim to be withdrawn, the settlement agreement will usually include a standard non-disclosure clause. This, if agreed to by the employee, will prevent them discussing, or perhaps even mentioning, the case outside a small circle of family and legal advisers. If the employee is reluctant to take a vow of silence, the settlement agreement may well fall through. Some employees agree to the non-disclosure clause and then reveal details of the claim, perhaps to the press. From a legal point of view, this is generally accepted as being a breach of contract. The employer may then seek to recover, through the civil courts, the money paid in settlement. This may be a risk that a worker who is determined to expose the actions of an employer may be prepared to take.

Employment law and procedure: a critical analysis Part 2

Employment law and procedure: a critical analysis

Part 2

  • Complexity

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.