In this new book developed from his earlier article in International Socialism socialist barrister David Renton examines the disparity between the ambitions of workers who bring tribunal claims and the outcomes they are likely to receive. “Where the law creates problems”, he argues, “the answers are outside the law.”
One of the biggest failures of the tribunal system is the failure to reinstate unfairly dismissed workers. Of over 40,000 unfair dismissal claims in 2010-1, only eight resulted in orders for reinstatement.
Where compensation is awarded, arbitrary statutory caps mean claimants are often awarded significantly lower payments than their actual calculated loss. One claimant says: “I became financially in debt because I wasn’t able to meet my regular domestic bills… I’m still trying to catch up on bills and things that got left. I’m trying to clear up this mess. The £3,000 was like a month’s wages; it went back against the bills. It wasn’t luxury money. Financially, I’m still struggling.”
On top of statutory caps, employment judges tend to over-use their powers to reduce compensatory awards as a result of “deep lying anxieties that a tribunal system which was more generous to claimants would upset the proper relationship between workers and employers in the workplace”.
Employment judges are overwhelmingly male, middle-aged, white, educated at public school and Oxbridge. Renton argues that this “encourages a general approach of deference towards existing property rights and towards the rights of both professionals and managers”.
These judges often have to decide whether an employer acted reasonably. As Renton points out, “tests of reasonableness leave judges a wide discretion to decide the law according to notions of what seems right to them in a given case”. Toby Topham of the Institute for Workers’ Control anticipated in 1971: “An employer can, by reason of his status…always find reasons for a dismissal which a bourgeois court will accept as reasonable…in crucial cases, where legal protection may be needed by victimised workers, the tribunals would prove quite inadequate.”
Policy makers, by establishing Employment Tribunals and making dismissals “a legal question rather than a trial of industrial strength” sought to reduce strikes and weaken unions. However, Renton argues against the conclusion that the increasing number of tribunal claims since 1971 explains the falling number of strikes. He shows the major causes of strikes in the 1960s—wages and hours—continue to be resolved by industrial action rather than litigation.
More important in explaining the fall in strikes “are the legacy of the unions’ setbacks in the battles of the 1980s, the anti-union laws adopted in the same period, and the failure of such union victories as there have been in recent years to give such confidence to the workers as to transform the mood in the workplace”.
Rather, he argues, tribunals have filled a space left by the partial decline in industrial bargaining, “so that someone who has a genuine grievance about their work increasingly has no option but to sue”.
Although Renton suggests some legislative and procedural reforms that would improve the tribunal system for workers, he concludes: “Real reform must mean taking decisions out of the hands of judges and putting them back into the context of workplace bargaining.”