Last week the government published a draft Statutory Instrument enabling Employment Judges to sit alone in unfair dismissal cases from 6th April 2012. It is expected that the Statutory Instrument will be approved shortly.
My personal view is that lay members are an important part of the Tribunal process. Whilst we all have experience of the occasionally strange question being asked, this is outweighed by the number of times that a sensible point has been raised.
For example, when I have been acting for a Respondent and have bemoaned the lack of documentary evidence supplied by the Claimant in respect of mitigation, I have occasionally been met with words to the effect of: “well Mr Anderson, that is a matter for the Tribunal to assess, particularly the lay members taking into account their local knowledge” – This sentence can be varied in many ways, but it is telling how many times members are referred to in a context of the Tribunals experience.
However, the implications of Employment Judge’s sitting alone, should (in theory) be wider. The above points are a recognition of the existence of the “Industrial Jury” a phrase steeped in the history of the Employment Tribunal system, implicitly recognising the fact that the panel is appointed by statute for it’s diverse experience. It is in effect, a specialist jury.
This brings me to the issue of perversity appeals to the Employment Appeal Tribunal. The leading authority on perversity appeals is the well known Court of Appeal Judgment in Yeboah v Crofton  IRLR 634 . The case itself was extreme, the Claimant’s evidence lasted 25 days, Mr Crofton’s 10 days with 14 other witnesses providing evidence. The hearing before the Employment Appeal Tribunal lasted 12 days and before the Court of Appeal, 4 days. It was a salutary lesson in why appeals should be restricted to points of law.
However, with Employment Judges sitting alone in unfair dismissal cases, my view is that the risk of a perverse finding of fact is greater. Two points emerge.
The first is that a Judge sitting alone is more likely to make a mistake on uncontested evidence or misstate the evidence than a panel of three people. This type of perversity is covered at paragraph 95 of Yeboah, which indicates that such appeals will normally be allowed. For an example, see here . Before the point is made, I accept that Judges sit alone in most non employment jurisdictions without the assistance of lay members. However, whilst still restrictive, the approach to factual appeals in civil cases is different to that applied by the EAT.
The second point is more complex. Without the “Industrial Jury” an Employment Judge will be in a position to make findings of fact without having someone else on the panel say “hang on, is that right?” The highly restrictive nature of perversity appeals is based upon a) the experience of the Industrial Jury and the need to respect that background and experience as a specialist jury and b) the fact that it was a fact finding “jury” that reached the factual conclusions that it did.
Of course, it is unlikely that this change will result in Yeboah being revisited. In particular:
- Employment Judges already sit alone in some jurisdictions, for example wages or annual leave claims. No such distinction has been drawn in these cases previously.
- Users of the Employment Appeal Tribunal will acknowledge that it is taking longer for cases to be listed than previously. There will be no motivation on the part of the EAT to widen the scope of perversity appeals. In a significant proportion of cases, a perversity appeal is still an attempt by a party to reopen a case they rightly lost.
However, I write this as food for thought. Whilst no change is likely, it helps to recognise that the rationale for part of our system has altered.