Tribunals and tribulations

Issue: 124

David Renton

In January 2009 a health worker and Unison activist, Karen Reissmann, brought a claim of unfair dismissal to the Employment Tribunal.1 She complained that she had been dismissed for publicly criticising cuts at her trust. After her dismissal 700 of her fellow workers struck for 14 days in an attempt to save her job. Her battle then entered a legal stage, culminating in a tribunal hearing that lasted for two days. The employment judge made rulings that narrowed the scope of Reissmann’s claim. On the third day the case was compromised, with the settlement agreement including a confidentiality clause. Socialist Worker took up the story:

In a statement…Karen said that she was “happy with the outcome of the case”. She also pointed out that, in general, employment tribunals reflect a system that benefits employers. She said, “About 87 percent of cases brought to tribunal are won by employers”… The problems in the tribunal system are a matter for the whole trade union movement.2

In the decision to bring a claim, in its settlement and in the sense that no more could be achieved at tribunal than a partial victory, the events of Karen Reissmann’s hearing mirror the experiences of thousands of workers every year.

The past 20 years have witnessed a dramatic rise in the number of Employment Tribunal cases in the UK, from about 29,000 per year at the end of the 1980s to 189,000 in 2007-8,3 with every expectation that this figure will increase further in 2008-9 and 2009-10 as a result of increasing redundancies during the recession.

The tribunal system

Much of the rise in tribunal claims has taken place over the past four years (table 1). The main claims brought are currently: equal pay claims (62,706), working time claims (55,712), unfair dismissal claims (40,941) and wages claims (34,583).4 Where claims actually make it to a hearing the claimant’s chances are, on the face of it, relatively high: 72 percent of wages claims that made it to a full hearing in 2007-8 were successful, as were 53 percent of unfair dismissal claims, although this figure fell to 19 percent for race claims and 15 percent for claims for religious discrimination.

A total of 63 percent of all cases submitted to tribunal were settled in 2007-8.5 The reason employers compromise is that it usually costs them more to defend a hearing than a successful claimant stands to win in compensation. In 2007 the average tribunal case was estimated to cost an employer £9,000 to defend,6 more than twice the median amount paid in compensation to successful claimants (£4,000).7 Thus the employer will usually be able to offer the employee, say, 50 percent of their maximum possible winnings in a settlement agreement, and, where the employee agrees, finish the claim with less losses than if they had fought on and won.

In so far as there is a literature on the long-term increase in tribunals, the trend is only explained in the shallowest fashion. The recent government-commissioned Gibbons report8 seems to accept that in an industrial society with a population the size of the UK there is a natural level of tribunal claims. Reforms, it follows, should be aimed at reducing the number of claims to this level. But 20 years ago the number of claims was less than a sixth of what it is today. Fifteen years before that, in the early and mid-1970s, the normal level of claims stood at just 13,000 to 14,000 per year.9 Before 1964 there were no Employment Tribunals at all.

Table 1: Total Employment Tribunal claims, 2002-3 to 2007-810

April 2002—March 2003 98,617
April 2003—March 2004 115,042
April 2004—March 2005 86,189
April 2005—March 2006 115,039
April 2006—March 2007 135,577
April 2007—March 2008 189,303

Where tribunals come from

The Employment Tribunals (previously Industrial Tribunals) were created in 1964 and for the first seven years of their existence they had the power to hear only a relatively small group of cases involving disputes between employers and the state. The Industrial Relations Act 1971 brought the present system into being, allowing tribunals to hear claims of unfair dismissal. At this point they became the UK’s main employment court, and most new categories of employment disputes created since then are heard before the Employment Tribunals.

The 1971 act was adopted by Edward Heath’s Conservative government as a result of the Donovan Commission (1965-8). One participant, labour lawyer Otto Kahn-Freund, told his fellow commissioners that increasing strike figures in the 1960s could be explained by workers’ growing feeling that they had a right to their job—a right not dissimilar to that felt by the owner of a piece of property. He suggested that the creation of a system of industrial courts would bring these disputes into the legal sphere, ensuring that they could be settled without strikes. He wrote:

Friction caused by dismissals is a contributory and considerable cause of (mainly unofficial) strikes and other stoppages. It would be rash to predict that legislation of the kind under discussion would remove this cause of industrial unrest, but if the procedure is manifestly fair and, above all, very speedy, it can reduce the number of stoppages at least to some extent.11

Is it true, as Kahn-Freund suggested it might, that an expanded tribunal system resulted in greater industrial peace? It would be possible to place on a single graph two lines showing the increase in the number of tribunal claims since 1971 and the decrease in the number of strikes over the same period, and to conclude mechanically from this graph that the rising number of legal claims explains the falling number of strikes. But such a simplistic approach must be wrong. People are not the prisoners of legal relationships; they respond flexibly to legal opportunities according to a judgment of their interest and in the context of longer historical, political and class dynamics that make litigation appear more or less sensible at different times.

One document submitted to the Donovan Commission was a survey of unofficial strikes categorised by cause (table 2). Looking at these categories now, it is clear that many of them—wages, hours of work and even working arrangements—continue to be taken up as issues by unions in a fashion that has not changed much since the 1960s.12 Other areas—-redundancy, disciplinary and “other individual” cases—have entered the legal sphere over the past 40 years, and in the majority of workplaces are now entirely dealt with as legal matters rather than by strikes.

Table 2: Number of unofficial strikes in 1965, by cause14

Wages 1,173
Hours of work 22
Demarcation 59
Redundancy 51
Individual disciplinary 131
Other individual 150
Working arrangements 761
Trade union recognition 28
Closed shop 32
Victimisation for union membership 13
Trade union status 8
Sympathy disputes 26
Total 2,454

By far the most important reasons for the decline in the number of strikes are those advanced previously in this journal: the legacy of the unions’ defeat in the major battles of the 1980s; the anti-union laws introduced by the Thatcher and Major governments, and continued without reform under New Labour; and the residual loyalty of union leaders to the Labour Party and their unwillingness to take industrial action that might embarrass it.13 If the use of the law to resolve individual employment disputes can be added to this picture, it remains a subsidiary explanation.

The extension of the law

In 1973 it was possible for an astute observer to write:

There are some people for whom the prospect of litigation, of appearing in court, holds no terrors. The average Englishman, and in particular the average English employee, is not one of these people: if the pursuit of his legal rights involves an appearance in the court, it is quite likely that he will forego his rights rather than take those distasteful steps.15

This is no longer true in employment or in other areas of law. The law today appears more accessible not just to the millionaires, who have always retained family solicitors, but also to thousands of working class people.

While it is possible to see the increasing number of tribunal claims in the UK as an isolated trend, the rise can also be seen as part of a wider pattern in which the law has become more pervasive in people’s lives. Between 1973 and 2005, for example, the number of personal injury claims in England and Wales rose from 250,000 to 700,000 per year. Most personal injury claims (as with a growing number of employment cases) are now taken on a “no win no fee” basis, a means of funding which at first glance can appear to reduce the risks of litigation for claimants.

Under New Labour there has also been a dramatic increase in the number of criminal offences. Over 3,000 new criminal offences were created between 1997 and 2006.16 The government has also given the courts the power to hear cases arising out of disputes previously considered too mundane to justify legal claims. The clearest example of this has been the adoption of anti-social behavioural orders (Asbos). These operate by giving a civil court the power to issue orders banning behaviour which would otherwise be considered bad but not criminal. If the order is breached, it may be enforced by a criminal court which can jail the breaching party for up to five years.17

The law is also increasingly being used to determine the outcome of political debates. For example, in summer 2009 a number of terrorism suspects brought a case to the House of Lords. The suspects complained that although they were not in jail and had never been subject to criminal trials they were being held in conditions akin to criminal detention. They were held at home on 16-hour curfews; any personal visitors had to be approved in advance by the Home Office; their calls were monitored and they could not use the internet or mobile phones. The suspects added that after having been placed on “control orders” by the Home Office they had complained to lower courts and the courts had allowed these orders to be made after the state had given evidence which the suspects had not been allowed to hear. The suspects said that this was unfair and the Lords agreed.18

The interesting point of the story is not the relatively benign outcome but how the result was achieved—by litigation in the courts. With good reason, neither the suspects nor any of the human rights lobbyists who supported them (including Amnesty International) believed that the laws enabling control orders to be made could be overturned in parliament.19

Similarly, at the start of the US-led invasion of Iraq in 2003 countless journalists, lawyers and other critics of the war based their objections on the assertion that the war in Iraq was contrary to international law. As China Miéville points out in the most important rejoinder; this assumes, in effect, that, if the war had been totally lawful, the peace movement should have withdrawn its political opposition to the invasion.20

The limits of the law

The central problem with tribunals is that litigation tends to result in bad outcomes for workers. The problems begin before the hearing. An employee will approach a lawyer for legal advice. Sometimes they are told that their case has no merits, which is sometimes untrue, or, where it is true, it is unwelcome. Other lawyers will be much more encouraging at the initial meeting, only to lose interest in a case as soon as it encounters an initial difficulty.21 As we have seen, most Employment Tribunal claims settle. Many employees find that their case is being settled too fast or for less than they had been led to expect was likely. One recent survey of tribunal claimants found many instances of lawyers applying what it termed “robust” (for which we may read “unwelcome”) pressure on their clients to settle.22

It can take a long time to bring an employment claim to a resolution. Even a simple unfair dismissal case will usually be heard six months or so after the employee submits their claim form. Several categories of case (for example discrimination claims) often require two or even three pre-hearings. Where preliminary hearings are appealed by either side, the full merits hearing may take place as much as two years after the employee left employment. Where a full merits decision is appealed to a higher court, the delay between claim and resolution can be as much as a decade. Where a claimant leaves their employment with a strong sense of injustice, the delays add to their stress and can prevent the claimant from fully recovering, as well as making it harder for them to find a new job.

Tribunal hearings are environments in which employers usually (but not always) get a much more sympathetic hearing than employees. Employers have spent more on their representation and usually have a clearer idea of what to expect. In addition, various legal doctrines have the effect of tilting proceedings in favour of employers. For example, the tribunals have recently invented a rule whereby if an employment agency drafts a contract with an agency worker stating that they are not an employee, the contract takes precedence unless something makes it “necessary” to ignore it.23 This has the effect of making most of the UK’s 1.4 million agency workers ineligible to claim unfair dismissal.24 Of course where a worker has no power to complain about a dismissal they are more likely to suffer low pay, bullying and so on.

Another hostile legal doctrine, dating back to Lord Denning and the early years of the Thatcher government, is that where an employer dismisses an employee, and a tribunal must decide whether the dismissal was fair or not, the tribunal approaches the question not by asking what it would have done in the employer’s place, but whether the decision to dismiss was so bad that no reasonable employer would have done it.25 In effect the presumption is that a dismissal was fair.

Tribunals tend to disregard workers’ priorities. Interviews with tribunal claimants have repeatedly found that what motivate claimants are “notions of justice”.26 Workers who have been humiliated at work want to see their bosses criticised publicly in turn. Yet in most cases this is exactly what a tribunal does not do. It confines its findings to a narrow reading of the facts. It does not make a public declaration that an employer has been acting inappropriately. Moreover, while the tribunals have the power to order the reinstatement or re-engagement of a dismissed employee, this power is hardly ever used in practice. Of the 40,000-plus unfair dismissal claims before tribunals in 2007-8 only eight led to orders to reinstate or re-engage the employee.27

The main power of tribunals is to grant awards of financial compensation. Tribunal awards are low because of hostile statutory rules and the unwillingness of employment judges to make awards outside a narrow band that they consider reasonable. For example, compensation for unfair dismissal combines two elements: a basic award calculated in a fixed statutory ratio and a compensatory award which is intended to reflect the financial loss an employee has suffered as a result of dismissal. Under the basic award employees are compensated for dismissal at the rate of one week’s salary for every year that they have been continuously employed. For no obvious reason at all, when calculating the basic award it is limited to £350 per week.

In addition, tribunals start from the actual losses of an employee and then reduce this figure for various potential reasons. The most important reasons are: that the worker has contributed to their own dismissal; that it would be “just and equitable” to do so; or that the worker has failed to remedy their loss (eg by not taking sufficient steps after dismissal to find a new job). Many tribunal panels routinely make more than one such reduction.

The cumulative injustice can be seen by imagining a worker who was previously employed on £20,000 a year whose tribunal case comes to a hearing 12 months after dismissal, and who the tribunal accepts was unfairly dismissed, but who has not subsequently found a new post. Where the tribunal finds that the employee contributed to her dismissal it will routinely reduce her award by 25 percent under each of the first two powers, and in addition cap her award to (say) six months (a period in which a tribunal may decide she could reasonably have found a new post). On these facts, an employee will be £20,000 poorer as a result of her dismissal. Her actual award, however, will be just £5,625 (before tax).

The final challenge facing a successful claimant, armed with an order from the tribunal requiring the employer to pay compensation to them, is actually to secure payment. A recent study estimated that about 39 percent of claimants who won their case were paid nothing by their employer, while a further 18 percent or so were only paid part of the sum ordered.28

Tribunals against unions

The use of tribunals as a system to resolve disputes tends to weaken unions. In general, legal argument is a poor restraint on employer power because it always requires the employee to go outside the workplace for protection and in our current legal system it usually requires the employee to undergo dismissal in order later to be vindicated. Moreover, legal knowledge is the favoured preserve of a caste of trained professionals who are only ever weakly subject to any democratic control.

A further concern is cost. Where a union brings a case, the costs are not dissimilar to those for the employer (an average of £9,000). The average conceals a wide range of different legal costs, depending on the complexity of the case. Employment Tribunals hear very many one-hour or half-day hearings to decide wage cases. In cases of middling complexity (eg an ordinary race or disability discrimination claim) it is not unusual for an employer to spend £50,000 defending a claim. It is worth comparing this to the legal budgets of most unions, typically between £2 and £12 per member per year (table 3).

Table 3: Legal expenditure of selected unions, 200829

Union Members Expenditure Expenditure per member

CWU 230,968 £322,373 £1.40
Unite 1,635,483 £4,814,000 £2.94
GMB 601,131 £2,089,000 £3.41
Equity 36,441 £135,994 £3.73
NUJ 36,081 £401,789 £11.14

Crucially, over-reliance on legal advice tends to diminish the power of the rank and file within any given union. In a context where the most important powers of the unions (including the power to strike) remain bounded by hostile legislation, legal advice is likely to concern matters where the law can be of least help. Lawyers are conservative by their nature. Who wants to be the solicitor whose advice caused a union to have its funds sequestered? And the nature of union organisation means that it tends to be the full-time officials who are charged with the administrative task of asking lawyers for their advice. Lawyers in their initial advice tend to give encouragement to whoever it is who asked for their opinion. There are several recent examples of lawyers’ advice being sought in internal union debates and bolstering the position of full-time officials (eg in the lecturers’ union UCU union over the question of whether the union’s annual conference could lawfully vote in 2009 to boycott Israeli institutions).

Escaping the law

When Marxists have criticised the law they have tended to do so by reference to classes and modes of production. The Employment Tribunal is well suited to this form of analysis because it clearly and directly pits workers on one side against employers on the other. As a first stage of analysis we can say that under capitalism the law is a hostile terrain in which workers’ complaints are never fully satisfied. As Karl Marx himself wrote, “Legislation, whether political or civil, never does more than proclaim, express in words, the will of economic relations”.30 The main reason why workers lose at Employment Tribunals is because they take place under capitalism, and just as bosses have every economic advantage in capitalist society so too they have the tacit backing of the legal system.

The problem with such explanations is that the ruling class must also seek to retain the consent of the majority. One way this is achieved is by ensuring that laws are seen to be neutral and fair, thus encouraging workers to bring to the law complaints that would otherwise be settled in more unruly ways.31 In a letter written in 1890 Engels made the obvious point that if justice really did favour the employer in every single case it would cease to be attractive to the poor:

Law must not only correspond to the general economic condition and be its expression, but must also be an internally coherent expression which does not, owing to internal conflicts, contradict itself. And in order to do this, the faithful reflection of economic conditions suffers increasingly.32

It should be clear that there are plenty of ways in which Employment Tribunals confirm this more nuanced picture. I have already referred to workers’ relatively high chances of success in many tribunal jurisdictions. Moreover, claimants at the tribunal are often encouraged to feel that they have access to high standards indeed of procedural fairness.

In Employment Tribunals, for this reason, there is relatively little problem of individual bias by judges against claimants. The worst that can be said is that too many judges reach decisions prematurely based on a kind of lethargy, seeking the simplest way to resolve a decision, which generally means a finding against the employee. The problem for claimants is that high procedural fairness is often matched by substantive unfairness. This can only really be demonstrated by examples of tribunal practice. Here are three:

In a case where an unrepresented claimant was cross-examining a witness (his former manager), the claimant stopped the witness from answering questions and spoke over him. It felt almost as if the claimant was bullying the witness. The manager was represented by a barrister who rose eventually to her feet and attempted to intervene. The employment judge turned to the barrister and barked at her: “Sit down right now Ms X-.” The barrister sat back down. The judge allowed the claimant’s questions to continue.

At a pre-hearing review a claimant’s claim barely made any sense at all. Moreover, she appeared to have submitted the key parts of it so late that on a proper application of the tribunal rules it was out of time and could not be heard. The judge allowed the claimant to continue, advising her that she really should sort out the defects in her case, giving her a fortnight to do so.

A claimant wanted to raise new allegations at his hearing that the real reason for his dismissal was that he had been tortured by another country’s secret police; that his employers (a UK-based subsidiary of a foreign state) had given the police his details and facilitated his torture; and that they had dismissed him immediately afterwards. The employer said that as a matter of natural justice it was unfair to be expected to respond to such serious allegations, when the claimant had done nothing to warn that he would make them at a hearing. The judge allowed the allegations to be put in full.

Had any of these three claimants been interviewed afterwards for their thoughts on the merits of the tribunal system, each would have probably said that they had been lucky to have a scrupulously fair judge, while each respondent might have had genuine grounds for complaint. But in each of the three cases the tribunal ultimately found on the merits in favour of the employer and against the employee.

To understand contradictory, day to day experiences of this character requires something deeper than economic categories that determine the outcomes of litigation (but do so mediated by the needs of the legal system to retain an appearance of neutrality). An analysis that proceeds in these terms can usefully be complemented by the further insight that in any capitalist society there is a specific legal culture that will cause legal disputes to have certain outcomes.

As the emphasis of this article is on employment litigation in the UK, I will concentrate on the legal tradition in England, Wales and Northern Ireland: the common law.33 The most distinctive feature of the common law system, as opposed, for example, to constitutional legal systems, is that decisions are made on the basis of the authority of previous judgments, rather than by working from first principles from a list of constitutional precepts. Explaining the system to an audience of German socialists, Engels characterised common law in the following terms:

English law is either common law, in other words, unwritten law such as existed at the time when statutes were first gathered and later collated by legal authorities—on the most important points this law is naturally uncertain and ambiguous—or else it is statute law, which consists of an infinite number of individual acts of parliament gathered over 500 years, which contradict each other and represent not a “state of law”, but a state of complete lawlessness.34

Common law logic starts from previous legal decisions and asks what principles are compatible with a host of contradictory previous cases. In such a system there is always bound to be more at work than mere respect for the authority of past judgments. Again, at a level of great generality, common law is a tradition which:

(a) Tends to protect property rights.

(b) In particular encourages contractual disputes to be settled primarily on the basis of the terms actually contained within a contract (rather than by reference to, say, general values of fairness or reasonableness).

(c) Offers to the litigant in a civil dispute, or the defendant in a criminal case, a high level of fairness in procedure (if not in substance).

As an example of point (a), until parliament created environmental standards, which occurred over the past 30 years, there was no common law right for a person to bring a claim for losses arising from environmental harm. The only equivalent right was a right of property holders to bring claims over “nuisance”, ie when their personal right in a property was diminished by environmental damage. Also, in this area of law, there was and remains to this day a common law assumption that environmental damage is not actionable where the property damaged belongs to the poor (hence the legal maxim, “What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”).35 The same logic can also be seen also in the ease with which the courts found that the first attempts of socialists in the UK to pass municipal reforms were unlawful.36

Point (b) has been repeatedly affirmed, and was given a judicial gloss by Lord Jessel, in the case of Printing and Numerical Registering Co v Sampson, when he said, “Contracts when entered into voluntarily shall be held sacred”.37 In a decision of the House of Lords, made as recently as 2003, Lord Hobhouse explained the same principle but eschewed religious language, relying instead on patriotism and economic benefit:

When the parties have deliberately put their agreement into writing, it is conclusively presumed…that they intend the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith or treacherous memory… This rule is one of the great strengths of English commercial law and is one of the main reasons for the international success of English law in preference to laxer systems which do not provide the same certainty.38

Eighty years ago the Soviet jurist Evgeny Pashukanis suggested that how the law deals with contracts is not a secondary concern. Whenever a lawyer or judge thinks about how the law operates, they start from the relationship between two owners of commodities engaged in a contractual relationship:

The legal subject is thus an abstract owner of commodities raised to the heavens. His will in the legal sense has its real basis in the desire to alienate through acquisition and to profit through alienating. For this desire to be fulfilled, it is absolutely essential that the wishes of commodity owners meet each other halfway. This relationship is expressed in legal terms as a contract or an agreement concluded between autonomous wills.

Pashukanis concluded, “The contract is a concept central to law”.39

The main approach of common law is to read contracts carefully, closely, and only look with extreme reluctance outside the contract for a reason to disregard any particular term. For workers, the vast majority of whom have no power to negotiate the terms of their employment contract, this creates a constant situation of disadvantage. Should a contract allow an employer to relocate an employee’s work to a town anywhere else in England, the worker will get little satisfaction from the court if she claims later that the term was unreasonable. There is a standard judicial answer: “But you signed the contract, didn’t you?”40

As to point ( c ), this is the benign face of common law, the tradition of jury trial and the assumption of innocence for criminal defendants. One reason why there has been such an extraordinary rewriting of criminal law in the past decade is precisely because common law has come to offer defendants a high standard of procedural fairness. In an era of terrorism trials these standards act as a rebuke to government.

Precepts such as these dominate even in courts such as Employment Tribunals, which were set up in the modern era and are the product of statute rather than tradition, because the lawyers and judges involved are all schooled in a common law tradition in which these values dominate. The force of common law also obstructs reform, so if a hypothetical reform-minded government came to power and set out to reform tribunals, it would discover that many of the worst barriers for claimants are not the product of statute but are the work of common law judges, and are in these terms barely capable of repeal.41

As an example of the impact of judicial decision making, the rule that agency workers are in general not employees was made by the courts as recently as 2006. The decision was justified by an appeal to common law principles. Justice Elias said, “Agency workers are highly vulnerable and need to be protected from the abuse of economic power by the end users. The common law can only tinker with the problem on the margins”.42 Were parliament to legislate that agency workers should be assumed to be employees, judges would be incapable of escaping their common law training, with its emphasis on the need to follow the strict wording of contracts, and would continue to find that many or most agency workers were not employees.

Another feature of tribunals that I have mentioned, their hostility to the reinstatement of employees, even though they have the power to do so, flows from the tradition of respecting the property rights of the employer within common law. The common sentiment of judges is that forcing an employer to take back an employee would infringe the employer’s right to manage. There must be some limit to the power of the courts, and the courts choose to set it here. No legislation would be capable of transforming this antipathy, deep set as it is in our legal system.

Other possible reforms, for example an increase in compensation rates, are stymied by the comparison with common law (ie judge-made) limits on compensation in parallel jurisdictions of civil law. For example, the reason why awards for injuries to feelings in workplace discrimination claims are effectively capped at £25,00043 is that judges in personal injury law, working from common law principles, limit the compensation for a psychiatric injury brought on by an accident to roughly that figure.


What then should socialists have as their programme for reform of the tribunal system? Workers, at present, bring claims to tribunal because on a realistic evaluation of the opportunities provided, for example, by strike action they judge tribunals, bad as they are, as their best option. The Karen Reissmann case given at the start of this article is a good example. It is not that Reissmann and her allies were unaware of the potential of strike action. They pushed industrial action as far as it would go. A strategy of litigation was adopted relatively late, when it became clear that strikes alone would not in fact win her job back.

Where there is an increase in rank and file confidence, socialists should argue for the removal of legal cases from tribunals and their resolution by the more effective means of industrial democracy. After all, if the shop stewards of the 1960s had been told that they were about to see the birth of a legal system in which most workers who were sacked would go to the courts rather than strike, and only one in 5,000 who did so would be reinstated, it is likely that they would have put up an even stronger fight against tribunals than they did.

Some reforms are conceivable that might go a modest way towards reversing the worst features of the tribunal system. Tribunal panels consist of three member—a lay member nominated by a union, a lay member nominated by an employers’ organisation and an employment judge who must be an experienced lawyer. Lay panel members have been complaining for years of marginalisation.44 Were the judges removed from the panel, or held in reserve for a second appellate court, it is likely that different notions of justice would become apparent.

Even under the present system trade unions could go a modest step towards holding union appointed panellists accountable by the simple expedient of, for example, inviting them to publish at the end of each year a list of the number of cases on which they have sat and a summary of how they have voted.

In a revolutionary society a system of worker dominated tribunals would be almost bound to make better decisions than our existing employment courts. During the Portuguese Revolution of 1974-5 embryonic popular courts were formed to hear housing and criminal cases where it was believed that ordinary courts would be biased against poor litigants.45 It was the repeated experience of injustice, combined with the general raising of expectations that came from participating in revolutionary upheavals that led workers to see a possibility beyond the existing court system.

In the Employment Tribunals that the UK has at present workers face a constant problem of institutional hostility. When bringing a claim, it often feels as if there exists a constant systemic assumption that employers are basically right and claimants wrong. Challenging this systemic injustice will ultimately take a complete transformation of economics, society and the law.


1: Many thanks to Anne Alexander, Sukhmani Bawa, Simon Behrman and Keith Flett for comments.

2: Socialist Worker, 7 February 2009.

3: House of Commons, 2003, p80; BIS, 2009, p2.

4: BIS, 2009, p3. Equal pay claims are an exceptional group, which take up only a small proportion of the total workload of the tribunal. In contrast to most other tribunal cases, they are usually joint claims by often large numbers of workers. The claims were pioneered in the middle years of this decade by a few firms, based in the north east of England, which have promoted them as a cheap alternative to trade union membership. See McKenna, 2008.

5: BIS, 2009, p3.

6: DTI, 2007, p7. Claimants face an average bill of £3,000-DTI, 2007, p22.

7: BIS, 2009, p5.

8: DTI, 2007.

9: LRD, 1998, p2.

10: BIS, 2009, p3; ETS, 2006, p27.

11: Kahn-Freund, 1967, paragraph 7.

12: The partial exception is equal pay, but for the reasons given at footnote 4, equal pay claims are isolated geographically and by sector.

13: Kimber, 2009.

14: Kahn-Freund, 1967, appendix 1.

15: Greenhalgh, 1973, p20.

16: Morris, 2006. Many “new” offences, such as terrorist weapons training, using nuclear weapons for terrorism, etc, were in reality covered by existing law.

17: Examples of Asbos have included orders given to a depressed woman to stop jumping into rivers or canals; to a drug user, not to sniff petrol in Teesside; to children to stop being sarcastic; and so on. See Foot, 2005.

18: Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28.

19: Other cases heard by the Lords in the first six months of 2009 included cases on whether the police are allowed to “kettle” protesters into confined spaces, on the legality of assisted suicide and whether an employee on sick leave can accrue annual leave. For the last two decades the relationship between law and politics in the UK has been getting closer to the American model, in which such issues are the subject of repeated litigation.

20: Miéville, 2005.

21: Trade union solicitors, having no incentive to take on a large number of cases, are usually more cautious at an initial meeting than no win no fee solicitors. Both groups of solicitors tend to become more cautious the longer a case continues.

22: Moorhead and Cumming, 2009, p1.

23: James v Greenwich Council EAT case number 0006/06; also see James v London Borough of Greenwich [2008] IRLR 302, CA.

24: Renton, 2007; Renton, 2008a.

25: British Leyland (UK) Ltd v Swift [1981] IRLR 91, CA.

26: Moorhead and Cumming, 2009, piv.

27: BIS, 2009, p4.

28: Adams and others, 2009, pi.

29: Derived from union annual reports for 2008, published on Larger unions such as the CWU typically employ a full-time legal team whose salary costs do not appear in these figures. Legal expenses of smaller unions such as the NUJ tend to be higher, and in any event any one year’s figures can be made artificially high by even small numbers of complex cases.

30: Cain and Hunt, 1979: p59.

31: See Cain and Hunt, 1979; Beirne and Quinney, 1981; Collins, 1982. Thompson, 1975, in particular argues that in so far as the law is neutral between classes, this neutrality was the product of struggle and should be defended by the workers’ movement.

32: Quoted in Cain and Hunt, 1979, p57.

33: It is not suggested here that civil law or other legal systems produce more favourable outcomes for workers.

34: Engels, 1844.

35: Sturges v Bridgman (1879), 11 Ch.D 852 at 865; also see the discussion of nuisance, “the pale green tort”, in Conaghan and Mansell, 1999, pp124-159.

36: Roberts v Hopwood [1925] AC 578, where decisions of the Poplar councillors to pay fair wages, including equal pay to men and women, were held to be a waste of municipal taxpayers’ money and therefore unlawful.

37: LR 19 Eq. 462 (1875).

38: Shogun Finance Limited v Hudson (FC) [2003] UKHL 62.

39: Pashukanis, 1989, p21.

40: See, for example, White v Reflecting Roadstuds Ltd [1991] IRLR 331, EAT.

41: In strict legal theory, common law recognises parliament as sovereign and there is no limit to the ability of parliament to pass any law that it likes. Yet this doctrine is of diminishing force. The trend in recent years has been for parliament to pass laws limiting the power of future parliaments. And judges have always tended to read legislation how they choose. For some examples of this habit in early 20th century employment law, see Renton, 2008b.

42: James v Greenwich Council EAT case number 0006/06.

43: Chief Constable of West Yorkshire v Vento [2002] EWCA Civ 1871.

44: Dickens et al, 1985, p67.

45: Santos, 1982.


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