My idea for a ‘One Nation’ policy on unfair dismissal

The removal of lay Tribunal members from deciding unfair dismissal cases may well prove more serious for workers’ rights than the coalition government’s other measures to choke demand, such as fees, deposits and cost awards. This move by Minister Cable (who didn’t even reply to our ET Members’ Association protest), is undoubtedly most reactionary. It has sent a signal to bad managers that the days of reasonable disciplinary standards are over. Workers can be sacked with even less ‘comeback’ – the ‘Alan Sugar’ school of management is again firmly in the saddle.

Of course, as a long-serving ET Member, I would say that! However, as a former national official responsible for a team of union reps trained to take such cases to tribunals, my perspective is somewhat deeper than the average politician. The loss of so much industrial experience (managers as well as trade unionists) from the bench, cannot but dilute the quality of  tribunal dismissal decisions. Yet such a fundamental change was effected this year with only perfunctory resistance from the Opposition in Parliament.  Unfortunately, they were ‘gulled’ into believing the propaganda of  the small employer lobby and the Mail-type ‘stories’ of vast riches for undeserving ‘scroungers’ at the Employment Tribunals.

The average payout by tribunals is £3-4K and you have to suspend your life for 6-9 months to get any compensation (forget reinstatement, even though that was originally to be the main remedy).  In fact, the reputation of the Industrial Tribunals since being set up in 1972 , was very high with the public. The right to take your complaint of unfair dismissal to an independent tribunal became part of our folklore. They were then a radical departure in British law as the ‘common law’ only recognised ‘wrongful dismissal’, for breach of contract, and only a week or two’s unpaid notice was awarded in the courts – so only football managers benefited!

These ‘Labour Courts’ enshrined the principle of ‘the industrial jury’, and were to have a legal chair and two panellists from employer and worker backgrounds, rather than a judge making the law alone. In the days when unions were strong, they were part of a much wider series of recommendations by the union-friendly Donovan Report of 1968, to reform but strengthen the system of voluntary workplace industrial relations. The idea was that workers wouldn’t feel the need to ‘down tools’ to protect their mates from arbitrary sackings – then the major cause of unofficial walk-outs.  They were to be informal, speedy and non-legalistic with the power to reinstate as the main remedy if the sack was ‘unfair’ on plain principles of industrial justice.

Of course, over the  years the Industrial (now Employment) Tribunals failed to deliver on all those hopes. Instead they have become a formalised, delay-prone and small average compensation system for dismissal cases. The common law judges of the courts took control at the top and the legal profession generally at the bottom. On a Monday morning, you can see cabs draw up outside Tribunal centres and disgorge a retinue of QCs and junior lawyers with wheel-barrows of files as they settle in for 5, 10, 15 or longer days in lucrative employment (the main growth area these days). Even progressive governments simply added new jurisdictions (especially anti-discrimination and equality law with EU Directives), submerging the much more numerous and shorter dismissal cases. Such new areas were most involved and complex cases which are much more suited to the courts.  Perversely, however, this Coalition government removed lay Members from dismissal cases, where they have most experience!

Now lawyers sit alone and decide industrial issues of which they have little or no first-hand experience. Because the British legal system is so dependent on judge-made law, I suspect that it will  not be long before the whole concept of ‘unfair’ dismissal is turned on its head and ‘the band of reasonable responses’ will lay more stress on ‘the needs of the business’. Those very few cases that will get to a hearing in the future  will face a much less sympathetic and much more legalistic court regime. Sacked workers deterred by fees, deposits and the threat of legal costs will give up and even unions, advised negatively by lawyers who see ‘no fee if no win’, will not fund cases. In due course, employer disciplinary practices and procedures will weaken in line with the lower standards expected at the tribunals.

So, what’s to be done? Its back to the drawing board I’m afraid.  Forget ‘reforming’ the former tribunals with more laws. The system is now too entrenched in the courts and Ministry of Justice. Let it deal with the more legalistic issues.

We don’t have to re-invent the wheel.  Instead, I would take the concept of unfair dismissal, (including the advances which have been made in case-law and procedures), back to the workplace where the problems arise. With a statutory exemption in the law, (already there but needs updating), I would erect a more informal system of determining cases in the localities of the workplaces. It could be built on the existing ACAS-based disciplinary system of Codes of Practice, perhaps as a more independent appeals or arbitration system? Since their removal from ET dismissal cases, there is now a body of highly-experienced and trained ET Members available to provide a respected and independent system of adjudication.

This would make a lot of workers (and some managers) sit up and say, yes lets take matters into our own hands. Unions should give a lead. Now there’s a ‘Big Society’ or ‘One Nation’ idea.


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