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Court of Appeal speaks out on Employment Tribunal system

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[Thanks to Laurie Anstis of Boyes Turner for being the first to spot this]

In a fascinating judgment handed down today, the Court of Appeal has delivered a robust, compelling and bold defence of the employment tribunal and judicial system.

Lord Justice Mummery (who is a past president of the EAT) delivered the following comments when dismissing the appeal in Gayle v Sandwell & West Birmingham NHS Trust:-


9. Before I turn to the detailed submissions on Ms Gayle's appeal I should address the topic of procedural justice and efficiency in the ETs. In the final paragraph of the EAT judgment given by Mrs Justice Slade it is said that:- 


"33.It is a matter of great regret that so much public money and time has been spent on this matter."

10. I agree. Similar comments have been made in recent public discussions and consultations about the workings of the ET system generally. Some of the criticisms are justified, others need correction and all of them must be seen in their proper perspective. 

11. The ETs are under enormous pressure in these difficult economic times. Their caseload has increased by over 50% in one year, which comes as no surprise at a time of high unemployment. The cases have become more complex with the legislative expansion of employment protection since the tribunal system was first established. They take longer to process. It is not proper for me to comment on proposed reforms of substantive employment law. That is a controversial policy area for public debate and Parliamentary action. Procedural efficiency and justice are, however, of direct concern to the judiciary: the courts and the tribunals are equipped with wide discretionary powers to ensure that cases are dealt with justly. 

12. One area of debate is about cases of little or no merit, but considerable nuisance value. All are agreed that they should be cleared out of the system as soon as possible. They should not be allowed to take up a disproportionate amount of time in the ET or cause the other party to incur irrecoverable legal costs and loss of valuable working time. 

13. As for procedural justice and efficiency generally I would make the following points with particular reference to the EAT's comments on what happened in this case. 

14. First, Ms Gayle's litigation has now reached the third level of decision. That is not typical: most employment disputes do not even go one round, because they are settled through the good sense of the parties or thanks to the good offices of ACAS. When they are contested the vast majority of cases only go one round. 

15. Secondly, this case is based on events of nearly 5 years ago. Most cases are in fact finally decided at the level of the ET within months, not years, of the relevant events. 

16. Thirdly, the hearing of this case in the ET lasted nearly three weeks at the end of 2008 and beginning of 2009. With hindsight it is easy for a person who was not involved in the case to say that a hearing should have been shorter. It is much more difficult to achieve short hearings in practice when one or both parties are determined to take every point of law, evidence and procedure. My point is that most cases in the ET take only a day or two, not weeks as here. 

17. Fourthly, the EAT heard the appeal a year later. Most ET decisions are not appealed. Appeals, which are limited to points of law, are as of right, though the preliminary procedure devised in the EAT and streamlined over the years usually sifts out the hopeless points at an early stage and without a contested hearing. 

18. Fifthly, an appeal to this court on a point of law may only be brought with permission. A year passed before the appeal was heard in this court. The appeal has to compete for a place in the list with very many other appeals on every kind of case from the whole of England and Wales. Rightly or wrongly many other appeals are treated as having greater priority and there are not enough judges in this court to hear and decide them all expeditiously. The important point is that most employment cases never reach a full court hearing. The hopeless ones are sifted out by a single Lord Justice at the permission stage. The unusual feature of this appeal is that this hearing is the third time in which the case has been judicially considered in this court: permission was refused on a paper application; at the oral hearing of the renewed application via video-link permission to appeal was granted, though coupled with a caution from Lady Justice Smith about the outcome, when she said "Mr Bedford may have a point. I am not convinced that in the end the point will succeed�"; and then there was the hearing of the appeal for a morning before the full court. The appeal focused on one point only based on the significance of a sentence or two in a single, very long, paragraph in an ET judgment of 97 paragraphs. 

19. Sixthly, in every case the parties, who both think that they have a good case, are entitled to expect that their case will be dealt with justly. That takes time, care and patience, as well as considerable practical experience and specialist knowledge. It takes much longer than most people begin to appreciate to perform properly the most vital function in the whole civil justice and tribunal system. Establishing the facts soundly in every case at first instance is, in practice, of far greater practical importance than the limited corrective powers exercisable by the appellate courts in the relatively small proportion of cases that reach them. In the ET the issues have to be identified. In a case like this a mass of conflicting evidence is produced. It has to be assimilated, organised, analysed and assessed by the ET. There were nearly a dozen witnesses in this case. The ET then had to listen to competing legal arguments and detailed submissions from the parties. It had to consider and write up the decision with its detailed findings and reasoned conclusions. 

20. Seventhly, as for those who complain about the time taken and the legal costs and other expenses and losses incurred, I think that they would want the hearings to be conducted in the interests of justice to both sides. I have seen very few constructive suggestions for practical improvements. If workers are given rights, there must be properly qualified, impartial and independent tribunals to adjudicate on them in accordance with a fair procedure. If workers are not given the necessary means for the just adjudication of their claims, procedures of a more rough and ready non-judicial kind may be used. The alternative procedures would probably not be impartial, independent or just, and are unlikely to do much for public order, social harmony or national prosperity. 

21. Eighthly, the ETs continue to make good progress in managing cases efficiently and justly to ensure that the oral hearing concentrates on what really matters without wasting time and money on what does not matter or is only marginally relevant. If the ETs are firm and fair in their management of cases pre-hearing and in the conduct of the hearing the EAT and this court should, wherever legally possible, back up their case management decisions and rulings. 

22. Lastly, the parties and their advisers themselves have duties to discharge personal and professional responsibilities in the preparation and presentation of the cases in the tribunals. They must keep a proper sense of proportion in the issues raised for decision, in the selection of legal points worth taking and of relevance in the quantity and quality of the evidence that they need to call. Contrary to the way that some observers see it and the way that some participants do it, justice in the tribunals (and in the courts) is not a war, or a battle, or a game. It is not a talent contest for spotting the winner and awarding a prize: it is (or certainly should be) a reasonable, sensible and civilised way of sorting out disputes that the parties have unfortunately been unable to sort out themselves. In my view, some (though by no means the majority) of the shortcomings identified by critics are not in the system itself, or in the tribunals, or in their practice and procedure, but in the attitudes and approaches of some litigants to the process of reasonable resolution of conflict.