Employers should be careful what they wish for

Victoria Phillips is head of employment rights at Thompsons Solicitors

The Weekly Thompsons Solicitors blog

 

We report in this week’s LELR new research which shows that claimants at the Employment Appeals Tribunal (EAT) have a better chance of winning their appeal if it is heard by a judge sitting alone.

 

This builds on earlier work by the same authors at the universities of Sheffield andLiverpoolabout the perceived value of lay members at the employment tribunal (ET) and EAT. Their findings indicated that although there remained good support for lay members among EAT judges, they valued their input rather less than their lay colleagues did.

 

It is a genuine surprise that the main value of EAT lay members is apparently to employer appellants. It should be equally so to ministers who have changed the law to allow judges to sit alone in the EAT unless otherwise directed and employment judges to sit alone in an ET to hear unfair dismissal cases, again unless a judge orders otherwise.

 

This was primarily a money-saving exercise, with an underlying political motivation. As usual it was a decision made by ministers after lobbying by employers – mostly the British Chambers of Commerce – who claimed, without evidence, that lay members were unnecessary in the tribunal system (no doubt assuming that lay members favour employees).

 

Ironic then that the consequences could be that employers will lose more cases.

 

Set against the backdrop of the government’s sustained and substantial erosion of workplace rights, might this be a glimpse of judicial checks and balances on an overbearing executive?

 

With her background as Senior Industrial Relations Officer at the Royal College of Midwives and Assistant General Secretary of the Association of First Division Civil Servants, Professor Susan Corby, who carried out the research, is no doubt exploring this very question.

 

Meanwhile, as we say in LELR, it will be interesting to see whether allowing employment judges to sit alone in some ETs will backfire on the government since the ET decides 25 times more cases than the EAT does. The message for the employer lobby is, once again, be careful what you wish for.

 

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