Monday 30th April 2012 at 6:00am
This month we witnessed the first steps in the coalition’s plans for the reform of the tribunal system. New employees taken on after 6 April 2012 only qualify for protection against unfair dismissal after being continuously employed for two years (up from the previous one year). Simple unfair dismissal claims will be reserved to one employment judge rather than the present tribunal with two lay panel members. The maximum costs that may be ordered by a tribunal will rise from £10,000 to £20,000. Due to follow, over succeeding months, are a watering down of employers’ obligations on transfers of employment and in redundancy situations.
The government’s most dramatic change to the tribunal system will be the introduction of issuing and hearing fees for claimants, ie workers, but not for respondents, ie companies. The proposed fees for an unlawful deduction of wages claim will be of the order of £400, rising to £1,500 for a discrimination claim.
The ground for these “reforms” has been prepared by a press campaign to the effect that most employment tribunal claims are dubious, weak or vexatious, that the average cost to an employer of defending a tribunal claim is £125,000 per claim (British Chambers of Commerce (BCC)), and that seen as a whole the tribunal system is as bleak as “Dante’s vision of the inferno” (the Financial Times).
But the majority of tribunal claims that make it to a contested hearing succeed (roughly 60% in 2010–11). Meanwhile, a careful check of the BCC document in which the figure of £125,000 per claim appeared shows that it was the guess of a single personnel manager. The median awards for unfair dismissal and discrimination claims are a rather more miserly £4,500 and £7,000 respectively.
The press criticism of employment tribunals has distracted us from deeper problems with the system, which are likely to be aggravated by the coalition’s planned changes. Here I will focus on two of them.
Lack of reinstatement
First, it is unjust that the vast majority of tribunal claimants who are dismissed will never be reinstated. Of the 10,000 unfair dismissal claims heard by the tribunal in 2010–11, only eight concluded with orders reinstating or re-engaging the claimant.
A reinstated claimant returns to colleagues she knows, and to a work environment in which she has the credit (in most cases) of good service prior to dismissal. Her salary is maintained at its old level and her prospects for the future are protected. A claimant who wins her claim but is not reinstated finds herself at the mercy of a job market, in which it always takes longer than hoped to find suitable work.
Employers know that tribunals will not reinstate successful claimants, and refuse to reinstate employees where an employee is dismissed and the employee appeals the dismissal. In the mid-1960s, in the industries which kept records, workers who raised internal appeals against dismissal succeeded in between one third and one fifth of all cases. Today, the success rate of internal dismissal appeals is undocumented, but experience suggests it is unlikely to be more than one or two per cent.
Our leading employment judge Elias LJ recently remarked in the Court of Appeal (of cases where an employee is suspended from work to enable allegations of misconduct to be investigated): “It would be an interesting piece of social research to discover to what extent those conducting disciplinary hearings subconsciously start from the assumption that the employee suspended in this way is guilty and look for evidence to confirm it” (Crawford & Anor v Suffolk Mental Health Partnership NHS Trust  EWCA Civ 138,  All ER (D) 132 (Feb)).
The fundamental cause of the declining independence of workplace structures of discipline and grievance is the certainty that once a worker is dismissed, they will not return. The interest of those remaining in the workplace rests, therefore, in convincing themselves that a dismissal is fair, irrespective of its actual merits.
Second, the level of tribunal awards is appallingly low. The average wage in the UK is around £24,000; the average time between dismissal and a tribunal hearing is roughly one year; and the clear majority of tribunal claimants remain unemployed at the time of their hearing. Putting all these factors together, the average award should presumably therefore be of the order of £24,000. But the median unfair dismissal award was just £4,591 in 2010–11.
The gap between loss and remedy results from overlapping rules which give tribunals multiple grounds on which to reduce an award beneath the claimant’s actual loss, plus artificial limits on the weekly wage which can be compensated.
Among the coalition’s proposals for fees is the idea that where a worker agrees in advance to limit their claim to a maximum of £30,000 they should pay lower fees. In other words, “reform” will aggravate one of the worst aspects of the present system.
Much indeed needs to be changed; but the proposed reforms are going the wrong way about it.
David Renton is the author of Struck Out: Why Employment Tribunals fail workers and what can be done, published by Pluto Press & a barrister at Garden Court chambers. E-mail: email@example.com Website: www.gardencourtchambers.co.uk
(This article was first published in New Law Journal “Trials & tribulations”, NLJ 27 April 2012, p 557.)
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Tuesday 21st February 2012 at 11:06am
A very interesting decision of Elias LJ last week in Crawford & Anor v Suffolk Mental Health Partnership NHS Trust  EWCA Civ 138.
Most of this is a conventional unfair dismissal appeal, concerning experienced health care workers with a long service record who were accused of misconduct because of the way that had dealt with an elderly patient, who suffered from dementia and who the workers had some difficulty in restraining. There are comments of little general significance concerning the range of reasonable responses test.
The much more interesting parts of the decision are paras 71-3, which I reproduce in full in speech marks at the end of this post. Elias LJ, who has been an increasingly liberal judge ever since his decision in James v Greenwich Council  IRLR 168, comments on the increasing tendency for employers to turn to the police in matters of ordinary misconduct.
He says that the employers are turning the police too often, and without cause. He suggests that when employers do this it causes them to suspend the employees concerned, again without good cause. And he suggests that suspensions of these sort bind employers to dismissal decisions, which lead to unfair investigations, and unfair dismissals.
I imagine these passages will be used by claimant representatives in many misconduct cases to come.
“71. This case raises a matter which causes me some concern. It appears to be the almost automatic response of many employers to allegations of this kind to suspend the employees concerned, and to forbid them from contacting anyone, as soon as a complaint is made, and quite irrespective of the likelihood of the complaint being established. As Lady Justice Hale, as she was, pointed out in Gogay v Herfordshire County Council  IRLR 703, even where there is evidence supporting an investigation, that does not mean that suspension is automatically justified. It should not be a knee jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is. I appreciate that suspension is often said to be in the employee’s best interests; but many employees would question that, and in my view they would often be right to do so. They will frequently feel belittled and demoralised by the total exclusion from work and the enforced removal from their work colleagues, many of whom will be friends. This can be psychologically very damaging. Even if they are subsequently cleared of the charges, the suspicions are likely to linger, not least I suspect because the suspension appears to add credence to them. It would be an interesting piece of social research to discover to what extent those conducting disciplinary hearings subconsciously start from the assumption that the employee suspended in this way is guilty and look for evidence to confirm it. It was partly to correct that danger that the courts have imposed an obligation on the employers to ensure that they focus as much on evidence which exculpates the employee as on that which inculpates him.”
“72. I am not suggesting that the decision to suspend in this case was a knee jerk reaction. The evidence about it, such as we have, suggests that there was some consideration given to that issue. I do, however, find it difficult to believe that the relevant body could have thought that there was any real risk of treatment of this kind being repeated, given that it had resulted in these charges. Moreover, I would expect the committee to have paid close attention to the unblemished service of the relevant staff when assessing future risk; and perhaps they did.”
“73. However, whatever the justification for the suspension, I confess that I do find it little short of astonishing that it could ever have been thought appropriate to refer this matter to the police. In my view it almost defies belief that anyone who gave proper consideration to all the circumstances of this case could have thought that they were under any obligation to take that step. I recognise that it is important that hospitals in this situation must be seen to be acting transparently and not concealing wrongdoing; but they also owe duties to their long serving staff, and defensive management responses which focus solely on their own interests do them little credit. Being under the cloud of possible criminal proceedings is a very heavy burden for an employee to face. Employers should not subject employees to that burden without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet “criminal” being applied to the employee’s conduct. I do not think that requirement was satisfied here. No-one suggested that the appellants were acting other than in the best interests of JE and the other patients. The restriction was not essentially different to the physical restraint which had been carried out in the day shift. I can only assume that the relevant committee was influenced, as I suspect Mr Mansfield was, by the fact that technically tying JE to the chair was an assault, with the implication that this is a grave matter. But so is it an assault when nurses physically restrain a patient, or compel him to wear a mask when he is spitting at people, as happened with JE. There was obvious justification for restraining this patient, even if the appropriate procedures for doing so were not employed, and in my view the police should never have been involved.“
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