Introduction
Employment tribunals have come a long way since their inception, not only in scope but also in philosophy. The idea that they should hear claims in an atmosphere far removed from the courtroom, accessibly, informally, speedily, and cheaply, no longer pertains as much as it once did. This study examines the extent to which employment tribunals in the UK fit for the purpose in meeting the needs of both aggrieved employees and employers. The study further recommends reforms for improving employment tribunals. The study traces the growth and change of employment tribunals in UK for the past five decades. These tribunals trace back to distinct and informal organizations that transformed, to merge with ordinary civil courts in the effort to improve employees’ working conditions and employers’ working environment.
Overview of Employment Tribunals
The origin of employment tribunals began in the early 1960s. After establishment, these tribunals presided over several legal proceedings involving employers and employees. Common cases emerging from employees involved poor remuneration, unfair dismissal, and discrimination. They also presided over appeal cases raised by employers in opposing levies imposed by the government, to finance training activities. Afterwards, responsibilities of employment tribunals have changed to involve settlement of rows and conflicts emerging between employers and employees in relation to payments and compensation after termination of their employment contracts. As time passed, there was a significant increase in jurisdictions range, in agreement with reorganizations of the legal structure within employment relations. Additional roles assigned to the employment tribunals were inclusive of addressing issues related to discriminative sacking, intimidation on the basis of race and sex, contravention of contract, and improper deductions from salaries. After inclusion of these roles to the list of responsibilities awarded to employment tribunals, the employees started expressing satisfaction with employment conditions. Because of these interventions, UK also witnessed an increase in employment levels, as people were guaranteed job security and favorable working conditions. Explaining the positive impacts of employment tribunals, Sanders (2009) clarifies that unfair sacking from employment reduced by 38 percent by 2005.
As the jurisdiction range continues widening, the total number of employment tribunal claims has widened. Between 1995 and 2010, the number of legal cases raised by employees and effectively handled by the employment tribunals has increased three times. This increasing trend represents an added pressure to tribunals that had limited roles in the past. The result has been the introduction of several legal amendments with an aim of reducing emerging employment-related cases.
Before 1970, employment relation trend in UK was governed by a collective laissez-faire judicial system. This system ensured that each case of work-related rows was addressed in a panel that encouraged collective bargaining. Moreover, employers proceeded to petition against the tort law in an effort to minimize the industrial power. However, the law and industrial relations were two distinct domains, and the government assumed a fundamentally abstentionist policy in connection to the employment act.
In the early 1980s, the UK administration made a significant move that resulted in reduction of industrial actions presided over by the employment tribunals. This move saw an increase in dismissal related cases because the move had limited legal implication. Within this period, UK became a signatory of European Union. The aim of this move was to ensure improvement of employees’ legal representation right. During this period, UK government introduced several individual statutory employment rights. The government went ahead to stipulate that employment tribunals had to oversee employment dispute emerging from additional employer allegations and dismissal justifications such as poor employee performance (Urwin 2012)
Impact of Employment Tribunal on Employees’ Discrimination
Studies show that employers deny employment opportunities to potential workers because of varying erratic, mistaken, hateful, and ethically repressible arguments. In his ruling over a case of Allen v Flood (1998), the employment tribunal judge cited a rapid increase in discrimination cases among several modern employers. This statement had a strong influence on decisions made by several judges afterwards. In 2001, the government amended the common legal clauses in order to begin with “Sex Discrimination Act” of 1919. This clause encouraged the removal of clauses that promoted restriction of women from education, professional career development, and acquiring legal offices based on the perception that they were wives. This clause led to increase in women that ventured in the legal profession. Moreover, the employment rate among women in several professions increased because protection of their rights was guaranteed. However, this clause faced unending criticisms and opposition (Boon 2011). Eventually, the sex discrimination act was revoked. However, the newly introduced antidiscrimination statute is also friendly and considerate to women rights. However, this statute addresses several cases of discrimination such as racism.
In the effort to promote equality, UK government proceeded to approve and incorporate the conventional right model. This model assured women employees that they had the absolute right of launching their complaints against their employers in Employment Tribunals supported by protection against intimidation (Drinkwater 2011).
Furthermore, to improve the outcome of employees’ tribunal cases, the related legal provisions have been amended severally. The main aim of the amendment is to ensure that the ruling from employment tribunal also agrees with other significant provisions of the UK constitution. Most notable was reform that affected ruling of employment tribunal in P v S (Marinescu 2011). This provision stipulated that individuals going through gender reassignment reserved the right of protection from discrimination by the employers. The clause went ahead to promote the same opportunities among various employees.
Proposed Reforms
Merging with The Advisory, Conciliation, and Arbitration Service (ACAS) is an effective move of promoting improved judgment resolution. ACAS acts as a sovereign body of employment tribunal. This body was established in order to resolve some employment disputes. This followed the realization that the number of emerging cases were increasing after incorporation of additional employment rights (Busby 2012). Therefore, ACAS reduced burden to employment tribunals. Critics viewed ACAS as an organ established by the government, to replace employment tribunals because it did not have distinct objectives (Urwin & Murphy 2007).
Some employment tribunal cases will have to be presided over by ACAS, to ensure that some can be resolved before proceeding to the tribunal. Merging the two and assigning roles will ensure that ACAS takes a month before an early resolution prior to the proceeding of the case presided by the tribunal. However, this move will not deny ACAS the responsibility of providing conciliation after a claim is issued by an employee (Hervey 2009).
Mediation between the employees and employers is another significant reform. This reform should go together with incorporation of compromise and bargains. This move will reduce the number of cases piled in a tribunal. Minor cases that can easily be resolved between the claimant and the defendant can be resolved outside the tribunal (Huffer 2012). This approach promotes consultations and cooperation between employer and employee. According to Venulex Legal Summaries (2013), this move has proved effective in several European countries. However, critics argue that compromise agreements are lengthy, legalistic, and exceedingly complex. Therefore, employers emphasize on generalization of legal clauses in this area. Amending the ordinary setup, as recommended, will trigger a reduction in time and cost invested in negotiation arrangements (Moorhead 2010).
Undertaking weaker litigation is another proposed reform. A dominant reproach against ETs is an argument by employers that emphasize that employment tribunals allow employees with minor claims to inflict untenable loads on employers. For instance, introduction of fees as recommended in the reform will not hinder workers from raising unfounded, hypothetical, or utterly aggravating claims. Although there are legal provisions for addressing such claims, their impact has been insignificant. According to the explanation issued by UK administration in relation to this issue, it plans to increase the petition fee in order to prevent minor and baseless claims from employees targeting employers (Saridakis 2008). However, the same government has been unable to outspread the existing ability of the ETs to reject insignificant claims waiting on their case list.
Another reform should inspire settlement of cases. One of the central recommendations issued to the government is the proposal of introducing “formal offers” method. The aim of this method was to ensure that the involved parties (employees and employer) are more reasonable before initiating any legal proceeding. In relation to this proposed reform, comprehensive explanation of the litigation should be presented to the employment tribunal (Paul 2005). The tribunal should proceed to adjust (by increasing or decreasing) the compensation offered in the event whereby either of the two parties refused to accept a rational compensation offer. Sargeant (2010) embarked on a study with an aim of understanding the employers’ perception towards the “formal offer” method. This study established that 95 percent of the employers supported this system and emphasized that they would incorporate it into their institution. However, the UK government perception towards this system has been discouraging. This is because this government declined the request of introducing this system based on the perception that this measure will favor employers (Marinescu 2011).
Introduction of financial fines against employers will improve performance of employment tribunals. Over recent years, government move has seemed to support employees than employers. This is evident by the government willingness to approve the proposal of introducing financial fines against employers. Breaching minor requirements, therefore, attracts massive financial penalties from the government. In order to prevent employees from falsely suing their employers, fines retrieved from some cases should go to the government. However, determining the compensation that should go to the government is a challenging decision and may incite rebellious arguments from employees (Knight 2000). The government should further award the judges with the freedom of imposing fines depending on circumstances. The judges should also have the mandate of determining whether compensation should be awarded to the employee or government.
Conclusion
This work shows that employment plays a significant role in rescuing employees from discriminative practices emerging from employers. Before the emergence of employment tribunals and empowerment by the law, discrimination cases were rampant. However, the study recommends the need to incorporate several reforms as a way of improving the plight of employees and employers. Recommended reforms include incorporation of ACAS to assist in reducing the number of cases addressed by employment tribunals. Additional recommendations include ensuring that insignificant cases are addressed by ACAS. Other minor cases without justifiable basis should be dismissed in the initial stages, to prevent time lag on important cases.
References
Boon, A 2011, What Difference Does it Make? Facilitative Judicial Mediation of Discrimination Cases in Employment Tribunals, Industrial Law Journal 40 (1) 45-81
BUSBY, N 2012, Workers, Marginalised Voices and the
Employment Tribunal System: Some Preliminary Findings, Industrial Law Journal, 41( 2), 166-183
Drinkwater, S 2011, The post-application labour market consequences of employment tribunal claims. Human Resource Management Journal 21 (2): 171-189.
Hervey, T 2009, Case C-303/06 Coleman v. Attridge Law and Steve Law Judgment of the ECJ 17 July 2008; Judgment of the Employment Tribunal, London, 30 September 2008 . Journal of Social Welfare & Family Law, 31 (3): 309-319.
Huffer, N 2012, Major Changes to Employment Tribunal System: Will Claimants get over the Hurdles? Credit Control 33 (7/8) 14-16.
Knight, K 2000, Discipline, Dismissals and Complaints to Employment Tribunals, British Journal of Industrial Relations, 38 (4): 533-555
Marinescu, I 2011, Are Judges Sensitive To Economic Conditions? Evidence From Uk Employment Tribunals. Industrial & Labor Relations Review 64 (4): 673-698.
Moorhead, R 2010, An American Future? Contingency Fees, Claims Explosions and Evidence from Employment Tribunals. Modern Law Review 73 (5): 752-784.
Paul, L 2005, Making a Difference? Legal Representation in Employment Tribunal Cases: Evidence from a Survey of Representatives. Industrial Law Journal 34 (4): 308-330
Sargeant, M 2010, The UK national minimum wage and age discrimination. Policy Studies 31 (3): 351-364.
Saridakis, G 2008, The Impact of Enterprise Size on Employment Tribunal Incidence and Outcomes: Evidence from Britain. British Journal of Industrial Relations 46 (3): 469-499.
Sanders, A 2009, Part One of the Employment Act 2008: ‘Better’ Dispute Resolution, Industrial Law Journal 38 (1): 30-49.
Urwin, P 2012, Quantitative evidence in the evaluation of ADR: the case of judicial mediation in UK Employment Tribunal, International Journal of Human Resource Management, 23 (4): 567-589.
Urwin, P., & Murphy, R 2007, Employee voice regimes and the characteristics of conflict: an analysis of the 2003 survey of employment tribunal applications, Human Resource Management Journal, 17 (2): 178-197.
Venulex Legal Summaries 2013, UK Employment Law Changes to Take Effect in April, 2013 Q1, Special section, 1-3.
