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Should Employment Judges sit alone?

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The government's consultation paper on Resolving Workplace Disputes, published last month, seeks views at p43 on whether Employment Judges should sit alone, without wing members, in unfair dismissal claims.

Wing members are typically highly capable and experienced small business owners, HR professionals or union representatives. They add a very real benefit to tribunal hearings. They provide perspective as to what is (and isn't) acceptable in the workplace. They act as a fetter to an occasionally overbearing employment judge (of whom there are thankfully far fewer these days) - never in public, but often behind the scenes. And the need for structured panel debate before reaching a conclusion avoids a swift rush to judgment.

But these benefits come at a price. Not only the considerable financial cost of paying the wing members' fees and reimbursing their expenses, or the administrative cost of the wing member selection and allocation processes. But the following costs are also real and significant:-

(a) slowing down proceedings: the tribunal goes at the speed of the slowest reader of the three tribunal members, and the speed of the slowest writer of the three members.

(b) delay: when cases go part-heard, the frustration at having to wait months for another date when everyone can attend can be reduced (albeit not eliminated) if the dates do not need to fit the convenience of the wing members' diaries.

(c) legal issues: it is very rare for a judge or wing member to have difficulty applying the Burchell test. But once one comes to the application of a tricky equal pay or working time regulations point, it is undesirable that (in theory, at least) the two unqualified wing members can overrule the legally qualified and experienced employment judge on a point of law.

The requirement for a panel of three has been eroded over the years. Employment judges now sit alone on case management discussions, most pre-hearing reviews, and claims relating to unlawful deducions, unpaid holiday pay and redundancy payments. In some cases, the parties can consent to the employment judge sitting alone. If the case is particularly complex, the Regional Employment Judge can still direct it be heard by a panel of three rather than a single judge (s4(5) Employment Tribunals Act 1996).

Notwithstanding the benefits that wing members bring, 'mainstream' justice has never seen the need to temper a judge's assessment of the facts, or of what is reasonable, with wing members who can overrule him. County court and High Court judges made decisions all the time about whether someone has acted reasonably (which is the fundamental issue in any unfair dismissal case). It is the bread and butter of judging. It is difficult to see why central funds should pay for wing members to help employment judges make this sort of decision, when other judges (often hearing much higher-value and more complex claims) do not receive such help.

If the judge sits alone, the case is dealt with faster. That might not be a popular statement, but it's true. That means less cost and time for the parties, and less cost for the tribunal system. It also means that employment judges will be able to get through more cases, either reducing the backlog of cases waiting for a full hearing or dealing with the neverending boxes of case management applications which require a decision on paper.

Sometimes it will be desirable for an Employment Judge to have the assistance of wing members. Such cases are probably not common, but they do exist. Such a case will inevitably require at least one case management discussion, at which the judge can raise the issue (or the parties can make an application), and an informed decision can be made.

There were 9,700 unfair dismsisal claims disposed of at a full hearing by the employment tribunal system last year. Assuming each lasts an average of one day, this would potentially eliminate the deployment of 19,400 wing member days. The daily fee paid to a tribunal wing member is £194, although the Department of Business, Innovation and Skills assesses this at about £230 if administrative and other support costs are added in. So there would be an immediate annual cost saving of up to £3.8m (or £4.5m if including support costs) if wing members were no longer required in unfair dismissal claims.

A caveat must be added; many claims involve multiple jurisdictions. A Claimant may allege discrimination at the same time as unfair dismissal. Assuming that wing members will remain for such hearings, it is apparent that the savings will not be as high as set out in the previous paragraph. But, nevertheless, they remain substantial. Balanced against this is the fact that a very significant proportion of unfair dismissal cases take more than a day, increasing the overall cost to the system.

As an ancillary benefit, abolishing the requirement for wing members in unfair dismissal claims would also enable the Employment Tribunals Service to cancel the recruitment exercise, due to take place later this year, for a further 300 wing members to cope with current needs. This would make an immediate saving of £0.5m (the cost of the previous recruitment exercise).