Prof Sue Corby on adjudication in employment rights cases
How do the lay members of Britain’s employment tribunals (ETs) and the employment appeals tribunal (EAT) add value to the decision-making processes in enforcing rights? The first post on this blog reporting on a WERU member’s research is based on Prof Susan Corby’s presentation at the February 3 WERU meeting. Sue’s work is supported by the Economic and Social Research Council Res-000-22-4154.
Employment rights cases are determined at Employment Tribunals (ETs) by an Employment Judge sitting often, but not always, with two lay members, one with experience as an employer, the other with experience of representing workers. All three have equal decision making powers and appeals can be made to the Employment Appeal Tribunal (EAT) which has a similar composition. Since 1993, however, the Government has been giving the Employment Judge the power to sit alone without any lay members in an increasing number of types of cases, and questioning the value of lay members. Furthermore, shortly after this research commenced, the Government proposed yet further reductions in the types of cases where ET lay members sit and proposed removing them completely from the EAT.
The aim of this research project, carried out by WERU’s Susan Corby and colleagues, was to investigate whether and how lay members contributed to judicial hearings and to decision making, thus providing evidence for the development of public policy. To this end, questionnaires were sent to judges and lay members; analysis was undertaken of judgments and of certain administrative data; and interviews were conducted with stakeholders. In addition, information on the role of lay members in other UK tribunals and labour courts abroad was gathered, so that comparisons could be drawn.
ET judges and ET lay members responding to our questionnaires (and we had a response rate of over 50 per cent), and those whom we interviewed, broadly endorsed the role of lay members at ETs and essentially accepted the present division between cases where ET judges sit alone and cases where there are tripartite employment tribunals. Importantly, the majority were against the Government’s proposals for further reductions in the use of lay members at ETs. Respondents also were of the view that the provision of workplace experience and balancing a legal perspective with that of workers/employers were lay members’ main contribution. As to the Employment Appeal Tribunal, both EAT judges and those whom we interviewed had more mixed opinions about the value of EAT lay members.
The researchers also found that British lay members are unique compared to their counterparts elsewhere in Europe: they self-nominate and are assessed by conventional HR techniques. Elsewhere in Europe lay members are nominated by the social partners who are responsible for assessing their suitability (formally or informally). Furthermore while the British government has repeatedly questioned the value of lay members, other European governments accept lay members in labour courts as a political given.
See Corby, S. And Latreille P. (2012) ‘Tripartite Adjudication: An Endangered Species’ Industrial Relations Journal, 43, 2.