Thursday 8th March 2012 at 10:00am

How does employment law compare?

In common with many employment barristers, I do not have a solely employment law practice. I spend around 70% of my time in the county court, and only 30% or less at the ET. In some ways, I see employment law from the outside. There are many things I love about employment law, and there are some which leave me dissatisfied.

I thought it might be useful if I jotted down some personal dislikes. It should be noted that this is a purely idiosyncratic list, and should be taken with a heavy pinch of salt:

1. A culture of combat

The purpose of the Employment Tribunal is to resolve workplace disputes. The Tribunal’s authority to do this is provided by its combination of knowledge (it is a specialist court, with specialist judges and lay members chosen because of their experience of industrial relations from the employee or the employer’s perspective) and independence (its members have no interest in the dispute between the parties). By taking conflicts out of the workplace and suspending them in mid-air, the involvement of the parties is changed. On both sides, the lawyers to whom the case is passed are engaged in a legal battle which is an altered form of the original struggle between worker and employer.

Some Tribunal representatives (and because I predominantly represent Claimants, the difficulty I encounter is overwhelmingly with Respondent representatives), internalise their client’s position, and express their affront that anyone could possibly sue their company, the company being otherwise universally acknowledged as a paragon of all conceivable virtue.

You see this often in settlement negotiations. I also represent clients in for example family law where if anything the disputes “should” be much more heated (my cases typically emerge from relationship disputes, they often pit two parents together who hate each other, and they sometimes carry a risk that one party will never see their child again). Something important (a child) is at stake in family disputes. Yet the representatives are almost always scrupulously polite to each other. Employment disputes concern something far less important (the money large businesses owe, or do not owe, to their workers). Yet in employment, settlement discussion often takes place in an atmosphere of hostility bordering on contempt.

2. Unnecessary legal complexity

I describe this in my book in the following terms: ‘Tribunals are supposed to be simple courts. The 1968 Report of the Donovan Commission, from which the modern Tribunal system dates, announced that the Tribunals would be “easily accessible, informal, speedy and inexpensive.” Tribunals, in the words of another 1973 account, “are cheap; they are geographically convenient to use; they are open to all litigants, in person or represented as they wish; and their procedures are specifically designed to be used, with help readily available if he requires it, by the man in the street.” Yet many litigants find Tribunals closed and off-putting places. Even before starting a claim, the forms are hard to comprehend, and the rules regarding the time-limits by which a claim must be submitted are unforgiving. The language of the court is highly formal. The procedure of Tribunals is fixed. Parties address the court in a fixed order. Factual submissions are made before legal submissions. To be most effective in putting their case, even an unrepresented claimant will be expected to copy some of the mannerisms of an experienced barrister addressing a higher court.’

As a representative, I find a very great contrast between the culture of the county court and the ET. The former are much more practical and speedy. Legal points arise, but are not made merely for their own sake. A relatively high proportion of what is done can be done by agreement. The calibre of the Judges appears to be generally high. A friend who used to be an employment specialist but now only practises occasionally in the ET recently complained to me about what it was like taking up returning to the ET after a break – he had to remind himself of much law, more than he would have faced if coming to a housing, family or PI case after a similar break.

There is no equivalent in housing or family law of the equal pay case-law in employment: where Respondents have been allowed to take legal points of increasing complexity, in a spirit which lawyers will admit (off duty) as being all about “taking every bad point you can”, i.e. running every possible argument, so as to drag out litigation and make it prohibitively expensive for workers to sue on rights which in theory are protected by statute.

3. A culture of suspiciousness leading to misguided credibility decisions

I recall a case which the lawyers on both sides managed to simplify down to a single decision of fact: had a worker been offered alternative employment prior to dismissal? If they had, the claimant accepted he had no claim. But, he said, he had never been offered the job. The respondent had prepared a job description, but the email trail was unclear as to whether the job offer had ever been communicated to the worker. In the course of evidence, the respondent’s witness admitted – after a careful study of the documents – that they showed that the job had not been offered. Thereafter the respondent’s representative did not even put to the claimant in cross-examination the suggestion (which his own witness had withdrawn) that the job offer had been communicated to the claimant. At the end of the case, the Tribunal found on the balance of probabilities that the job offer had been made.

A reason, it seemed, for the Tribunal’s findings, was that the panel had seen in the bundle other documents relating to a separate PI case involving the same parties, in which a doctor instructed by the employer said that the claimant had exaggerated an injury. The doctor from the PI claim was not a witness to the ET claim. The ET inferred from a report produced for separate litigation that the claimant was a liar, and they used this to make findings which contradicted every actual piece of evidence they heard.

I give this example of one of the easiest way a Tribunal can make a decision, which is to make findings as to “credibility” (i.e. that a particular witness is a liar).

This kind of decision making is pernicious, for all sorts of reasons. It produces “loaded” results – because employers have vastly more resource to properly prepare their claims, they are far less likely to have to attend the ET with statements contradicting the case papers.

It is unamenable to appeal (because appellate courts do not hear the witnesses, they have to take credibility findings on trust.

It is also something particular to employment – as opposed to family or housing. In neighbour or parent disputes the courts have to start from the assumption that both parties are gilding the lily (because experience teaches that usually both are). The courts don’t get distracted by relatively small lies relating to irrelevant matters. If someone gets caught lying, but the lie is irrelevant, the lie is ignored. Judges are more sceptical about both parties; and as a result the general standard of the decisions they make is higher.

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