Employment Law Critical Analysis
Introduction
Key employment law institutions are vital in that they help to minimise discrimination between employers and employees in the workplace and in this way, ensure a harmonious working relationship. Several institutions are involved in the development, supervision, and enforcement of employment law, key among them being Employment Tribunals and Employment Appeal Tribunals (Lewis & Sargeant, 2004, p. 1). However, while these key employment law institutions have proven to be helpful in the realisation of a harmonious workplace, there have been reports that they at times impeded justice. The premise of the current essay, therefore, is to critically examine whether key employment law institutions allow for justice in the workplace.
Employment tribunals
Industrial tribunals were first incepted under the 1964 Industrial Training Act, although their jurisdiction has since been extended extensively. They had to undergo a name change to employment tribunals, in line with the stipulations of the 1998 Employment Rights (Dispute Resolution) Act. The creation of the Employment Tribunal Service in 1997 was intended to give organisational and administrative support for both the Employment Appeal Tribunal and the employment tribunals. An employment tribunal constitutes three members: a solicitor or barrister with legal qualifications, who is appointed by the Lord Chancellor on a seven-year term.; and two members, also known as lay members, representing both sides of the industry. The lay members are recognised as full members of the tribunal, meaning that they have the power to outvote the legal chair (Painter and Holmes, 2012). However, it is important to remember that more than 90 percent of the decisions arrived at by the employment tribunals are often arrived at unanimously. Nonetheless, amendments to the employment tribunal courtesy of the 1998 Employment Rights Act empower chairs to hear certain cases alone, including such claims as dismissals on health and safety grounds and unauthorised wage deductions. Employment tribunals also enjoy jurisdictional powers so that they can provide a quicker, less formal, less expensive, and more accessible decision-making forum in comparison with ordinary courts. Employment tribunals enjoy jurisdiction over such diverse matters as race and sex discrimination, allegations of unfair employment dismissal, as well as matters pertaining to redundancy in the workplace (Cownie, Bradney & Burton, 2007).
In the past two decades, there has been a considerable rise in the number of applications made to employment tribunals. For example, between 1994 and 1994, approximately 70,000 applications were made. However, by 2010-11, a total of 218,000 claims were made (Painter & Holmes, 2012). Based on the fact that the number of applications in the coming years is expected to rise, this points to a growing need to enhance the operational effectiveness of this institution, in addition to embracing a coherent approach that fosters "strategic planning across the employment tribunal system" (Painter & Holmes, 2012, p. 24).
Employment Appeal Tribunals (EATs)
EATs are a creation of the 1975 Employment Protection Act as a replacement of the National Industrial Relations Courts that had been established by the 1971 Industrial Relations Act (Dickens & Neal, 2006). The EAP acts as an avenue for applicants and respondents to appeal against indecisiveness arrived at by the Employment Tribunal. The EAT consists of a chair who ought to be a judge of the Court of Appeal or the High Court, and who is nominated by the Lord Chancellor and two lay members (Daniels, 2004).
Employment law institutions and barriers to justice in the workplace
Ideally, employment law institutions such as employment tribunals are meant to bring justice in employment relations, where the employee or employer feels that they are being discriminated against by the other party. In case the defendant feels that the decision made by the employment tribunal is not satisfactory, they are free to seek justice through the EATs. However, the idea that an Employment judge can sit alone in a tribunal and hear a case has raised concerns that employment tribunals may not lead to the realisation of justice in the workplace (Rouco, 2015). While industrial tribunals allow for legal representation, "legal aid is not available to pay for it." (Jackson, 1989, p. 129). Accordingly, it is not unusual for the employer to get legal representation even as the employee dismissed for example, lacks legal representation. Nonetheless, different from the case in ordinary courts, in industrial tribunals, the unsuccessful plaintiff is not often required to offset the cost incurred by their successful opponent. The tribunal only awards costs in case it establishes that proceedings were started in a vexatious, unreasonable, or frivolous manner.
Employers usually assert that excessive and uncalled-for complaints made by employees to employment tribunals impose a heavy burden on them. This is because employers end up incurring costs in the form of time management and legal costs as they contest claims (Williams & Adam-Smith, 2010). It has also been suggested that tribunals may also not adequately consider the plight of small firms while adjudicating cases, not to mention that judgements made by tribunals are not indicative of the preference of small firms to manage staff in informal and flexible ways (Williams & Adam-Smith, 2010). Concerns have also emerged to the effect that disgruntled employees often look up to tribunals as a means of claiming monetary compensation that they do not deserve. The introduction of employment tribunal fees has also come under criticism, on grounds that this will have a considerable limiting effect on employees who seek to access justice (Carty, 2014). This has also placed doubt on the future of employment law. For example, following the introduction of the employment tribunal fees, there was a 79% reduction in the number of claims made between October and December 2013, compared to a similar period the previous year (Graham, 2014).
TUC (2014) opines that the introduction of fees for applicants to the Employment Tribunal "has had a major deterrent effect on individuals who consider taking valid cases to an employment tribunal" ( p. 5). The British Chamber of Commerce is of the view that the UK ETS (Employment Tribunal System) is broken and in dire need of reforms. Similar sentiments have also been echoed by the Confederation of British Industry, which claims that tribunals have proven to be overly alacritous in receiving sham. Moreover, both organisations are in agreement that it costs more to defend a claim under the ETS than to settle it (Peacock, 2011). However, the findings of empirical research carried out by Kirk, McDermont, and Busby (2015) could not establish a basis for the claims that a higher percentage of applications made to employment tribunals tend to be either financially motivated or weak. Instead, the study revealed that many low paid workers count on employment tribunals to obtain justice in the workplace, be it in the form of unfair dismissal, unpaid wages, or racial/ethnic discrimination (Kirk et al., 2015). According to OECD (2013), resolving a case fully under the UK employment tribunal costs employers twice what they would incur if they had arrived at an amicable solution at the conciliation stage. On the other hand, employees incur three times the cost it would take to settle the matter at the conciliation stage. Nearly 75 percent of UK employers who rely on the employment tribunal to settle their cases do so with a view to saving money and time, and not because they expect justice to carry the day (OECD 2013).
Difficulties faced when establishing employment status
Employment status is a vital commercial issue. Various businesses endeavour to ensure that their workforce does not cost much to administer and that it is not affected by existing regulatory protection. However, there is a growing increase in the number of cases in which agency workers and other workers endeavour to be recognised as duly legitimate employees. Pimlico Plumbers v Smith is the latest case that reveals the difficulties faced by employment law institutions in establishing the issue of employment status. In the case, the Court of Appeal established that Mr. Smith, a Plumber working with Pimlico Plumbers Ltd was actually a worker and not self-employed as his job designation read. He was thus entitled to enjoy various employment benefits that a genuinely self-employed individual would not enjoy. The employment tribunal as well as the EAT had also established that Mr. Smith had actually been engaged by the plumbing company as a worker (Weightmans LLP, 2017). The findings of the case point towards the fact-sensitive and multifaceted nature of the employment status issue. However, Autoclenz Limited v Belcher & Others still remains the leading case on the issue of employment status. In this case, a trade union has sought to establish that its members, whose contract of engagement declared them as partaking in the cleaning of cars, and hence self-employed, were actual 'workers' based on the working time rules to which they were subjected. The union thus argued that these ‘workers’ were entitled to the minimum wage.
The Court of Appeal established that the claimants were employees as well as workers, emphasising that there was a need to determine if a contract term was indicative of the actual intentions of the parties. The Supreme Court was also in agreement with the decision made by the Court of Appeal, contending that where a commercial contract is concerned, "both terms must have colluded to deceive an onlooker in order for a term to be found 'sham'" (Wilkinson, 2016). Sham terms refer to terms that, although they are included in a contract, are not in themselves indicative of the true state of the employment relationship (Wilkinson, 2016).
Not much empirical research exists in the literature in regard to the applicants' experiences with the Employment Tribunals systems. Surveys conducted by various government departments appear to paint positive experiences of the applicants' with the Employment Tribunal system. For example, a SETA (Survey of Employment Tribunal Application) indicates that 75% of claimants were satisfied with the Employment Tribunal system (Peters et al., 2008). Nonetheless, in-depth qualitative research conducted on a smaller-scale points towards a different picture. Research conducted to explore the experiences of persons who have made applications to the Employment tribunals on grounds of religious, or sexual orientation discrimination, established that Employment Tribunal systems are confusing, bureaucratic, and legalistic (Busby & McDermont, 2012). Despite all the aforementioned challenges facing employment tribunals, they are also advantageous in various ways. One advantage of employment tribunals is the speed with which cases are heard and settled. This is unlike the ordinary court system where the hearing of cases is notoriously slow. Tribunals are also cheaper in terms of deciding cases when compared with the ordinary court system. This, even as the introduction of application fees continue to be a contentious issue on grounds that it will deny many people access to justice. The informal nature of tribunals also renders them less intimating in comparison with the other cases heard under the ordinary court system (Slapper & Kelly, 2009).
Conclusion
Industrial tribunals are meant to solve disputes between employers and employees on such issues as sexual discrimination, racial discrimination, and unwarranted dismissal, among others. In case the applicant is not satisfied with the decision made by the industrial tribunals, they are free to move on to the EATs. However, there have been claims that industrial tribunals do not bring justice to the workplace based on various arguments. First, the fact that the employee who has been dismissed may not afford a lawyer while the employer can afford legal representation is, in itself, a source of discrimination. Secondly, the introduction of tribunal fees means that employees who are handicapped or without a job will not get justice. While empirical studies based on government departments largely paint employment tribunals in a positive light, the same cannot be said of employees from small firms, who report negative experiences with the industrial tribunals. Various cases such as Autoclenz Limited v Belcher & Others also indicate the difficulties encountered by the employment tribunals and the courts in establishing employment status.
References
Busby, N., & McDermont, M. (2012). Workers, Marginalised Voices and the Employment Tribunal System: Some Preliminary Findings. Industrial Law Journal, 41(2)166-183.
Carty, M. (2014). Employment tribunal fees “severely limit” workers’ access to justice.
Cownie, F., Bradney, A., & Burton, M. (2007). English Legal System in Context. Oxford: Oxford University Press.
Daniels, K. (2004). Employment Law for HR and Business Students. London: CIPD Publishing.
Dickens, L., & Neal, A.C. (2006). The Changing Institutional Face of British Employment Relations. Alphen aan den Rijn, The Netherlands: Kluwer Law International.
Graham, M. (2014). Tribunal claims plummet after introduction of fees.
Jackson, R.M. (1989). Jackson's Machinery of Justice. Cambridge: Cambridge University Press.
Kirk, E., McDermont, M., & Busby, N. (2015). Employment tribunal claims: debunking the myths.
Lewis, D., & Sargent, M. (2004). Essentials of Employment Law. London: CIPD Publishing. OECD (2013). OECD Employment Outlook (2013). Paris: OECD.
Painter, R., & Holmes, A. (2012). Cases and Materials on Employment Law. Oxford: Oxford University Press.
Peacock, L. (2011). CBI says employment tribunal system is a 'barrier to justice'.
Peters, M. et al. (2008), Findings from the Survey of Employment Tribunal Applications 2008, Employment Relations Research series no 107 (EMAR: London, 2010, 2).
Rouco, J.C. (2015). ECMLG2015-11th European Conference on Management Leadership and Governance: ECMLG2015. Sonning Common, RG4 9SJ, England: Academic Conferences and Publishing Limited.
Slapper, G., & Kelly, D. (2009). The English Legal System. New York: Taylor & Francis.
TUC. (2014). At what price justice? The impact of employment tribunal fees.
Weightmans LLP (2017). Court of Appeal contributes to the Employment Status debate.
Wilkinson, E. (2016). Employment status-tricky issues and grey areas.
Williams, S., & Adam-Smith, D. (2010). Contemporary Employment Relations: A Critical Introduction. Oxford: OUP.
