Wednesday 1st August 2012 at 6:00am
On bias
A couple of weeks ago a claimant wrote to me to describe what had happened to them in their case. It sounded horrific. I am often sent letters of that sort, and I attach my response to that claimant. I am not trying to devalue what I wrote to them, which was meant personally, but I thought it might be useful to others as indicative of my general approach, particularly towards the issue of whether Judges are biased (ironically, that correspondent was not saying directly to me that he thought his Judge had been biased, but it is a theme of others of my correspondents):
“I am grateful to you for writing, and I am truly sorry about what happened to you in your case. It sounds to me as if you have passed the point where there might be an legal remedy, and that is of the course the area in which I normally get involved.”
“In my book, I am trying (amongst other things) to give people a more satisfying explanation of why it is that so many good cases lose. Often people tell me that it seemed to me that the judge was biased against them, and I understand that, and I know it’s often how it feels. But what I try to explain is how even decent judges (who are the majority) are constrained by dynamics which just run deep in our legal culture, which the result that the right answer in law is often the wrong answer in terms of justice.”
“If you were to design the system from scratch you wouldn’t invent this one; and (because of the Coalition’s reforms), the future will be worse, not better. I appreciate that that is not a particularly cheerful note on which to end, but in a world peopled by adults sometimes it is better to face the truth.”
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Wednesday 18th April 2012 at 6:00am
Interview with a claimant
[I was sent this by a reader whose hearing took place earlier this year, and who has asked for his story to remain anonymous. What interests me is its typicality: it reflects the sentiment of a minority of claimants, albeit a large minority, who leave the Tribunal convinced that they were not allowed a fair hearing. Often, unsuccessful claimants will complain that the Judge was biased; this is not the approach of my book, which argues rather that there are long-term dynamics - assymetries of the law, and of the common law tradition - which limit the scope for judges and "nudge" Judges towards certain sorts of decision. I have published this account, though, because it is the sort of story that far too many claimants could tell]
My tribunal claim was for unfair dismissal and payment of notice pay. The respondent was a large government department, for whom I worked as a very junior administrator. I brought my claim in early May 2010, and it was not heard until late February this year. I could say a lot about the process leading up to the hearing, but I will confine myself to three typical happenings. In my ET1 I had outlined, fairly clearly, a couple of possible claims for statutory discrimination. At the CMD I offered to provide further and better particulars. The Employment Judge dealt with this by simply saying that the claims were not in the ET1. When I protested, he said ‘I think you’re just trying to inflate your claim’.
In mid-June 2011, the Tribunal informed the parties that a full-merits hearing had been listed to start in late October 2011. Ten weeks later, at the end of August 2011, the respondent applied for a postponement of the hearing. The grounds were that one of the respondent’s witnesses had booked annual leave for the week of the hearing, and that this leave had been booked in April, before the notice of hearing had been received. I objected to postponement: no holiday had been booked and paid for; the leave could be rearranged; the respondent had delayed making the application, and there was no explanation for the delay. The Tribunal granted the application, without giving reasons for its decision. I wrote requesting a review of the decision, taking into account my objections, and I asked for reasons for the decision. The Tribunal responded that under the Rules of Procedure the decision was not capable of being reviewed, and the tribunal was not obliged to give reasons for its decision. I did try an urgent appeal to the EAT: the decision was perverse; the witness was not unavailable. My appeal was dismissed on the sift.
Having got the hearing postponed until late February 2012, the respondent applied to amend its ET3, submitted 16 months previously. The amendment was granted at a PHR in early January of this year. The PHR judgment did not address my objections. At the full- merits hearing in February, the respondent’s representative cheerfully voiced his opinion that the application to amend had been misconceived. He himself had made the application at the PHR. His reasons for withdrawing the amendment matched word-for-word my objection to the amendment’s being granted in the first place.
I represented myself at the full-merits hearing in February this year. On a number of occasions, I asked questions of the respondent’s witnesses, which they had difficulty in answering. On each occasion, the employment judge intervened to ask the witness a leading question, which effectively answered for them.
An important part of my case, clearly pleaded in detail in my ET1, was that the procedures followed by the respondent had been persistently and grossly unfair. This was almost completely ignored by the tribunal. At one point the judge said ‘Oh, that’s the ACAS Statutory Code; we’re not interested in that’. I found out later that the judge had not read my ET1.
In giving oral reasons, the judge referred to two arguments advanced by me. He said I had provided no evidence to support these arguments. In both cases I had spent time in cross – examination, taking the respondent’s witnesses through documents supporting my arguments. In at least one case, the documentary evidence is clear, comprehensive, and, I think, irrefutable.
It won’t by now come as any surprise to you that I lost. I now have the tribunal’s written judgment and reasons. It is only a slight exaggeration to say that this judgment ignores all the documentary and witness evidence in my favour. The judgment mainly relied on the witness evidence of the dismissal officer, much of which is at variance with the contemporary documentary evidence. The tribunal said that the cause of my dismissal was a failure to comply with a reasonable management instruction. The respondent’s own dismissal letter said that the alleged failure to comply would have warranted a warning. The respondent seems to have dismissed me principally because of an unparticularised ‘irretrievable breakdown in the relationship between us as an employer and you as our employee’.
The judgment also joined with the respondent in placing great emphasis on my leaving a disciplinary hearing before the respondent wanted me to leave. Contemporary documents show that the respondent was not at all bothered by this at the time, but the respondent made a big thing about it at the hearing. My evidence that I would not stay to answer an unparticularised charge, and that the respondent was trying to put words into my mouth, well, that was ignored. The tribunal decided that my leaving was evidence of guilt, though the respondent never claimed that, and the tribunal never explained its reasoning.
No tribunal could have treated any respondent better than this one.
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Monday 9th April 2012 at 7:00am
Man bites dog; journalist gets employment law wrong
In my book, I give various examples of press stories about Tribunals which a moment’s checking would have shown to be predominantly false:
• a personnel magazine’s prediction that swine flu would lead to a sharp increase in Tribunal health and safety claims (but the ET doesn’t have the jurisdiction to hear health and safety cases)
• a business confederation’s survey finding that Labour’s employment law changes had cost business £73 billion altogether (including nearly £500 million for “reforms” to sex discrimination law, which had barely changed the law at all)
• stories in years when the total number of Tribunal claims has fallen, focusing on specific jurisdictions where the number of claims has risen, chosen to give the false impression that total claims are rising
To this august company can be added the sub-editor who provided the title to Louisa Peacock’s article in Friday’s Daily Telegraph ‘Discrimination claims expected to soar in 2012’.
The piece says, in summary, that there will be more discrimination claims in 2012 because of changes taking effect on 6 April 2012 increasing the period of continuous service an employee needs to bring a claim from one year to two. Discrimination claims have no minimum service requirement, so some of the missing unfair dismissal claims will be repackaged as discrimination claims. For that reason, we should expect more discrimination claims in 2012.
Now, the real news here is clearly that the government is making changes to employment law, through regulations rather than legislation (i.e. with minimal parliamentary scrutiny) which will reduce the total number of Tribunal claims. Only in that Pravda-in-reverse world where all claims by workers are inherently wrong could it make sense to translate the reality that total claims will fall sharply into the Telegraph-speak of: but (*cough* – affects tone of moral outrage) a minority of claims will still be heard.
The other, more specific, stupidity is this: the changes to unfair dismissal law take effect only for employees starting after 6 April 2012. IE a worker recruited on 5 April 2012, will still be able to bring an unfair dismissal claim if sacked after 5 April 2013, because they will only require a year’s continuous employment in order to bring their claim.
IE, if the changes to unfair dismissal are going to have an effect – and particularly if they are going to have more of an effect that the Telegraph seems to think possible – the first possible date at which this will kick in will be 6 April 2013, and probably the effects will not be significant until winter 2013-4 at the earliest.
The changes to the unfair dismissal qualification period could not have an effect on the number of discrimination claims in 2012.
The very nicest thing you can say about the headline is that it does a poor job of explaining the law to the readers of that newspaper.
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Monday 26th March 2012 at 7:55am
The Office for Judicial Complaints
Imagine the following hypothetical scenario. A solicitor phones: “My life is being made impossible. Because of my firm’s location, all our cases come inevitably before the same region and the same Judges.”
“In the last month, I’ve had cases struck out on the basis of non-compliance with Unless Orders which had lapsed by the time they arrived with me. I’ve had Respondents take the view that they are under no duty to comply with Tribunal disclosure deadlines. They say this to the Judges and are not criticised. Claimants meanwhile are being picked up on the most trivial of breaches.”
“Applications by claimants go into a judicial black hole while orders in favour of respondents abound on the intiative of judges”.
“A minority of my cases are elsewhere, and my day to day experience is that most ET regions are nothing like this. If I could move my offices I would, but I can’t.”
The solicitor asks, “What should I do?”
I circulated the above thought-exercise around some colleagues; two suggested that if they received such a call, they would approach the Office for Judicial Complaints.
Now the OJC does hear complaints about Employment panelists, eg for failing to sit, or being paid by an employer for work while also being paid for sitting as a panelist; for failing to declare a past suspension from union membership for racist conduct; or even (bizarrely) for failing to take the Oath of Allegiance;
But the OJC does not have jurisdiction to hear matters which would be capable of remedy by an ordinary appeal. Individually, each of the above matters would be capable of remedy. Accordingly, it seems, the OJC could not hear a complaint about them.
Indeed the OJC is actually consulting on a name change to make it even clearer what the OJC can’t do: “A significant number of complaints received by the OJC, do not contain allegations of judicial misconduct. In most of these cases, the complainant is unhappy with the outcome of their case, or with the decisions and directions that the judge has made in the course of the proceedings. These are not matters with which the OJC can assist.”
The situation, it appears, would be a Catch-22: because the individual complaints would be capable of appeal, there could be no complaint to the OJC. But the appeal route would involve taking the cases singly; and as I have written previously the EAT rules discourage bias appeals. Launching appeals of individual CMD decisions would not address a complaint of repeated, modest, poor performance by a region: the bias equivalent of an indirect discrimination claim.
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Monday 27th February 2012 at 10:22am
Bias in the Employment Tribunal system
Are Employment Tribunals biased against claimants? The answer you will get depends on who and how you ask. The Tribunal sends the parties feedback questionnaires; their answers are collated in a periodic Survey of Employment Tribunal Applications. The majority of claimants say that they received a fair hearing. Satisfaction levels are similar among claimants and respondents.
There have been qualitative studies of claimants, in which they are asked to do more than merely tick a series of boxes. In these studies, a substantial minority of Tribunal claimants complain that their Judge was hostile to them from the start of the hearing. This sort of detailed empirical study is usually only carried out among discrimination claimants. Their complaints are perhaps unsurprising; claimants in discrimination cases fare noticeably worse at full merits hearings than their counterparts in other types of employment claim.
In the 1970s and 1980s, a number of academics suggested that Tribunals were subject to institutional pressures which favoured respondents.
Few academics consider the question today.
A book published in 1983 described the experience of one Asian claimant who asked for an adjournment after being ambushed by his employer at the final hearing of the claim with reasons for his dismissal which had never been put to him previously. The ET judge awarded costs against the Claimant.
The EAT overturned the costs award on appeal but not without criticising the claimant for seeking the adjournment. Sir Ralph Kilner Brown suggested that the claimant’s inability to meet a case he had not expected was “somewhat typical of the oriental mind”.
Michael Rubinstein, who has been reporting industrial law cases since the Tribunal took on the unfair dismissal jurisdiction 40 years ago, has written that the calibre of judges has improved dramatically in that time, as has their understanding of discrimination law in particular.
Bias appeals are rare. They are fact-sensitive; they follow the general principles of the common law, that a fair trial is impossible when there is actual or even mere apparent bias. To give two examples:
Where a Judge expressed a view of the merits of a case, after the evidence but before closing submissions, that was not apparent bias.
Apparent bias was made out however where a Judge had been refused employment with a particular solicitors’ practice, and on failing to be appointed, intervened in his next case firmly against a client represented by the same firm.
The above cases are relatively old; there have been very few reported bias appeals in the past decade.
A reason for their absence is that the EAT rules discourage bias appeals. There is a specific procedure for such appeals, additional documents may have to be filed, and permission to appeal is less likely to be granted save after a preliminary hearing.
Paragraph 11.6.2 of the Practice Direction records that “The EAT recognises that employment judges and Employment Tribunals are themselves obliged to observe the overriding objective and are given wide powers and duties of case management so appeals in respect of the conduct of Employment Tribunals, which is in exercise of those powers and duties, are the less likely to succeed.”
Paragraph 11.6.3 of the Practice Direction continues: “Unsuccessful pursuit of an allegation of bias or improper conduct, particularly in respect of case management decisions, may put the party raising it at risk of an order for costs.”
The effect of these rules is no doubt to discourage what would otherwise be a larger number of bias appeals.
(A version of this was originally published in Socialist Lawyer, June 2011).
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