A piece in today’s Times, a pot of gold for female grievance-mongers and gold-seeking women:
Inexperienced judges who have never heard a case have been hired to clear an avalanche of employment claims from sacked and aggrieved workers.
Trade union and town hall lawyers are among 59 new faces judging cases at tribunals, where battles can cost millions of pounds in compensation and legal bills. In the biggest simultaneous recruitment of judges for nearly 400 years, appointees are being hired at annual salaries of £113,000.
An investigation by The Times shows that the tribunal system is in chaos with a record backlog of 40,000 cases. The average waiting time from a case being received to its conclusion now drags on for 39 weeks.
Employment judges appear to have been making a power grab, telling law chiefs that they should hear all equality cases, not just workplace disputes.
Even employers who win their cases must expect to lose out financially every time they receive a claim for discrimination because the system is stacked against them. Judges rarely reject equality cases without a full hearing and there is usually no way to recover costs from the losing side.
Tribunals are struggling to cope with a surge in demand since the Supreme Court ruled in 2017 that fees to bring cases were unlawful because they denied access to justice.
The resulting free-for-all has seen claims pouring in at more than double the rate before charges were abolished.
The rise has been almost entirely fuelled by unrepresented claimants rather than those whose cases have been brought by lawyers or trade unions. While some have merit, others seem extraordinary. Cases employers have recently had to defend include the dismissal of a van driver who called his young female colleague an “ugly pikey”. He complained that his sacking was sexual discrimination. In another, a Chinese man demanded £781,000 for failing to get a security job, claiming that he was racially discriminated against for liking table tennis.
To cope with the extra workload, rather than streamlining its procedures or throwing out weaker cases, the tribunals have embarked on the mass hiring of judges, increasing their annual salary bill by nearly £6 million. To fill so many new posts, the bar was lowered on the standards demanded of recruits, opening the contest for the first time to candidates without judicial experience.
Previously, full-time judges were chosen from the ranks of part-time judges who would have to hear cases for about 30 days a year. “In the latest round that wasn’t a requirement,” a judicial source told The Times. “Some people have been appointed who have never sat before. It was certainly a departure. It is quite a stretch for somebody to be thrown in immediately as a full-time judge.”
Nearly half the new recruits have no judicial experience on brief biographies issued by the Ministry of Justice. A spokeswoman for the judiciary said: “Where appointments are made without pre-judicial experience candidates will have met the selection criteria with material equal to that of their judicial colleagues. Regardless of previous background all judges receive extensive, high-quality training incorporating local orientation and induction training as well as a two-day cross- jurisdictional course for all new judges. In addition, all judges complete an annual mandatory two-day course.”
Employment tribunals were created by Tony Blair to replace industrial tribunals. They now hear more than 90 types of case, including complaints about unauthorised deductions from wages, breaches of working hours limits, unfair dismissal and discrimination.
Discrimination cases take longer to hear than other cases and even the Council of Employment Judges, representing most judges, told the Law Commission that “sometimes it is fair criticism that too much time is given” to equalities issues.
Guided by rulings from the upper courts, employment judges are reluctant to weed out weaker cases without a hearing, although this would reduce the workload. Employment Judge Russell told East London Employment Tribunal in 2019: “Those occasions on which a strike-out should succeed before the full facts have been established are rare, particularly so where the claim is one of discrimination.”
Judges may also allow irrelevant evidence to be heard, dragging out cases. Employment Judge Goodman concluded a six-day discrimination case at London Central Employment Tribunal last year by saying that it had involved 2,500 pages in evidence bundles and much else that did “not directly concern the 12 allegations of detriment”.
David Cameron doubled the qualification period for unfair dismissal from one to two years in employment. Lawyers warned that this might incentivise sacked workers to claim instead for discrimination or whistleblowing because employees retained the right to bring such claims from their first day at work. The latter cases take longer to hear than unfair dismissals.
Several claimants who brought discrimination cases and lost have told The Times that they genuinely believed they had been unfairly dismissed and would have claimed for that if the qualification time had been shorter.
Many employers settle discrimination cases out of court rather than pay lawyers and risk reputational damage. Latest figures show that while 22 per cent of all tribunal cases result in early settlements negotiated by the conciliation service Acas, that rises to 46 per cent of sexual orientation claims, 41 per cent for disability and 36 per cent for sex discrimination.
Employers are vulnerable to law suits launched to taint their image. Employment Judge Crosfill told East London Employment Tribunal in 2019: “Claims can be brought purely for the purpose of embarrassing another party.”
Employment judges have been seeking to expand their empire by requesting powers to hear all cases brought under equality law including disputes about goods, services, education and housing which are currently heard by county courts. The Council of Employment Judges formally pointed out to the Law Commission, which considers reforms, that they regarded themselves as “very experienced with equalities issues. Disability, for example. We are experienced in making disability work at the workplace, learning what disabled people can do, with reasonable adjustments. Think Paralympics. That experience is portable to other areas of equalities litigation.”
The move raises the prospect that, as with employment issues, claimants could launch claims without having to pay the other side’s costs if they lose, resulting in a surge in complaints of discrimination against shops, landlords, hospitals, schools and universities.
How did employment tribunals begin?
Industrial tribunals, as they were known, started hearing claims for unfair dismissal under a law introduced by Edward Heath in 1971.
Why were they invented?
In strike-torn postwar Britain the motive was to create an alternative dispute resolution system to a shop steward blowing a whistle and shouting: “Everybody out!”
Have they stuck by their original principles?
No. “The whole idea when it was set up was that they should be speedy, cheap and informal,” a judicial source said. “Employment has since grown to be one of the most complex areas there is.”
Can you act for yourself?
Yes, but good luck fighting the lawyers. Apart from specialist employment solicitors, there are so many QCs and barristers in the game that there are awards for employment silk of the year and employment junior of the year.
Do unfair dismissal cases benefit from input from the real world of work?
Not any more. At first these cases were heard by a panel including representatives of unions and employers. Since 2012 the use of lay members has been effectively abandoned.
Are these tribunals still a cheap option?
The legal costs can reach as high as £1 million and are usually impossible to recoup.
How much can a claimant receive?
Until 1993 the maximum compensation for discrimination was £8,500. The European Court of Justice then banned EU member states from capping such awards. Potential winnings soared, to £4.5 million in the case of Eva Michalak, a Polish doctor who, in 2011, successfully complained of sex and race discrimination when she was hounded out of work at Pontefract General Infirmary after deciding to have a baby.
Why don’t judges throw out clearly hopeless cases at the start?
Their hands are tied by higher courts. The House of Lords has also said that discrimination cases are vital in a pluralistic society and that it is important not to strike them out except in the most obvious cases.
What happened to plain, old industrial tribunals?
Tony Blair changed them to employment tribunals in 1998 and their chairmen and chairwomen were upgraded to employment judges in 2001.
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