Renton - Struck out: why employment tribunals fail workers and what can be done

Struck Out

First published 2012 by Pluto Press
345 Archway Road, London N6 5AA

www.plutobooks.com

Distributed in the United States of America exclusively by
Palgrave Macmillan, a division of St. Martins Press LLC,
175 Fifth Avenue, New York, NY 10010

Copyright David Renton 2012

The right of David Renton to be identified as the author of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988.

British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library

ISBN 978 0 7453 3256 7 Hardback
ISBN 978 0 7453 3255 0 Paperback
ISBN 978 1 8496 4656 7 ePub
ISBN 978 1 8496 4657 4 Mobi

Library of Congress Cataloging in Publication Data applied for

This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental standards of the country of origin.

10 9 8 7 6 5 4 3 2 1

Designed and produced for Pluto Press by Chase Publishing Services Ltd
Typeset from disk by Stanford DTP Services, Northampton, England
Simultaneously printed digitally by CPI Antony Rowe, Chippenham, UK and Edwards Bros in the United States of America

Several years ago, I found myself in an Employment Tribunal waiting room. In a corner of the room, I noticed an old friend, a man I had seen just once or twice in the past ten years. My friend is a barrister, although not an employment law specialist. You are more likely to see him at work in the High Court or the Court of Appeal. He was speaking hurriedly to a client. I tried to catch my friends eye but he was too busy to notice me. Some months later, we began to correspond after what had been a long gap. I mentioned to him the occasion on which we had nearly met. I do hate Employment Tribunals, he wrote back, they are such unhappy places. With that casual phrase, my friend had supplied the theme of this book.

My subject is the disparity between the ambitions of the Tribunal claimant who brings a claim complaining about injustice at work, and the outcome which that claimant is likely to receive from even a favourable Tribunal judgment, which almost always offers the claimant no remedy other than financial compensation usually of a modest amount. This, it follows, is a project of multiple explanation. I want claimants, trade unionists, and all the other non-lawyers who have an interest in fair relationships at work to understand why it is that the remedies are limited to money, and why it is that the remedies are low. As for lawyers, I want more of us to grasp, in a way that most of us do not, how rare it is for our priorities to match our clients.

I want to explain to claimants and their advisers why the Tribunal is often an inadequate forum for the address of grievances. I want both groups to understand that if they have lost, it may not be their fault. I write above all with the intention of persuading workers that other strategies for resolving wrongs, including raising complaints collectively through their unions, often achieve better results.

Although there is much law in this book, and I have made every effort to make it as accurate as possible, this is by no means a textbook. Its central message is that where the law creates problems, the answers are outside the law. This is as much a work of politics, history and sociology, as a book of law.

My intention in writing this book has been to encourage discussion, in particular among trade unionists, claimants representatives, workers themselves and those sympathetic to workers claims. While I have discussed its contents with many friends and colleagues, this book is intended above all to persuade others to take sides. It is not the product of any party line. And if any reader, on reading all of it, finds that they agree with the entire argument, they have missed the point. This book is intended to mark the beginning and not the end of a debate.

* * *

At the outset of the book, I need to explain some of the language I use. The Tribunals (originally Industrial Tribunals) were established by the Industrial Training Act 1964, to resolve disputes between employers and government concerning the industrial training levy. Their functions were expanded by the Industrial Relations Act 1971, under which they acquired jurisdiction to hear complaints of unfair dismissal. Their powers have increased widely since. The Tribunals were renamed Employment Tribunals by section 1 of the Employment Rights (Dispute Resolution) Act 1998. To avoid complication, and except where quoting from other sources, this book refers to both pre- and post-1998 Tribunals as Employment Tribunals.

In law, everyone who works is a worker, while the word employee is restricted to a smaller group of people who work under an employment contract. An employment contract is a contract of subordination (in the nineteenth century, the law termed the people we now call employees servants). A management consultant may be a worker; they are probably not an employee. The importance of this distinction is set out in Chapter 3, on agency workers; an important example of a kind of worker who is generally found by the courts not to be an employee.

The focus of this book is on the Employment Tribunal and to a lesser extent the Employment Appeal Tribunal (EAT) at which appeals from the Tribunal are heard. The Employment Tribunal is required to follow any relevant decisions of the EAT. All decisions of the EAT are available on its website, and some important decisions of the EAT are also published in law reports, such as the Industrial Cases Report (ICR) and the Industrial Law Reports (IRLR). Decisions of the Employment Tribunal do not bind another Tribunal, and for this reason they are not published or generally available, although they can be ordered from the Employment Tribunal Field Support Office in Bury St Edmunds,of a 10 fee. Sometimes a winning party will publicise the text of a favourable decision; as happened, for example, in 2010 and 2011 when several construction workers brought blacklisting claims in the Tribunal, and Tribunal decisions (sometimes favourable to the workers, sometimes to the employers) were circulated by both sides. Because Tribunal decisions are generally unavailable, most cases cited in this book are appeals.

Employment Tribunals are by no means the only court that can hear a workers complaint. If the complaint concerns an injury at work, the claim will be heard in the civil court system; that is, in a county court or the High Court, depending on the complexity of the case and its financial value. Tribunals can hear some damages claims, for example, where they are part of a discrimination claim (as when a worker complains of suffering discriminatory harassment which may have caused her to suffer a deterioration in her mental health). Unlike the civil courts, Tribunals can hear a case only if statute specifically allows the claim to be heard in the Tribunal. In the ordinary civil courts, there are several types of claim which are typically brought by workers, for example, breach of contract claims. But there are other types of claim which are typically brought by employers, for example, where the employer seeks an injunction (that is, an order) to prevent a former employee from competing with him.