Author: David Renton
Publisher: Pluto Press (8 Mar 2012)
ISBN: 9780745332550 Price: £19.99
Reform of the tribunal system has never been more topical, and practitioners are acutely aware of the frustrations their clients frequently feel at all stages of the litigation process.
As its name indicates the book takes an unashamedly claimant-focused assessment of the employment justice system in England and Wales, starting with the foundation of tribunals, progressing through specific topics such as equal pay and agency workers, and, after a nod towards human rights law, and the unions, ends with a suggested handful of reforms.
A troublesome adolescent
Perhaps unconsciously, the author hits upon what appears to be the real issue in the next decade: what does the tribunal service want to be? As with any troublesome adolescent the answer is not clear. Does it want to be a court with all the formality and technicality that goes with it (the size of the Employment Law Handbook supports this line of development) or does the tribunal retain its informal roots and easy-access, costs-free ethos? The author proposes reform by way of compensation increases coupled with formality decreases. This rides two horses. One can see the validity in a claim that compensation could be increased for unfairly dismissed employees due to the arbitrary cap on the basic and compensatory award, though the other side of this coin is protection for employers by limiting total liability. However, his calls for removing the “just and equitable” touchstone and to apply contributory fault and failure to mitigate reductions only as alternatives to each other misunderstands the basis of quasi-contractual compensation in the tribunal system.
Further, Mr Renton’s desire for deformalisation of the system in order to return it to its roots seem at odds with the justification for increasing compensation or more orders for re-employment (be it reinstatement or re-engagement). His proposals for the removal of employment judges and their replacement by a legally qualified clerk are also bound to be controversial and potentially expensive: the tribunal would be increased to four members all of whom are lay, but take their advice from the clerk in a manner akin to a magistrates court. This supports the general theme running through the book; employment tribunals have become too “juridified” and disputes were better resolved through collective bargaining and workplace dispute resolution procedures. This may be, but times have changed and are not likely to change back.
The author, we suspect, is in part deliberately provocative in his reasoning; he does not want his book to be seen as containing all the answers to the problems he identifies, but rather to encourage the debate. While his examples are necessarily extreme ones taken from the claimant’s point of view many of the failings in the system identified by him are equally troublesome for respondents.
To that end the book is an enlightening and stimulating read, and being pocket size is easy to carry around, for those long days sitting at tribunal waiting for your floating case management discussion to get called on…
Review by: Chris Bryden, 4 KBW & Michael Salter, Ely Place Chambers
New Law Journal, 15 June 2012