by Laurie Anstis on February 21, 2012
As well as the draft statutory instrument setting out the increase in the unfair dismissal qualifying period, we now have the draft statutory instrument enabling employment judges to sit alone in unfair dismissal cases.
Surely a contender for the title of shortest ever SI, it simply adds section 111 of the Employment Rights Act 1996 (the unfair dismissal claim) to the list of claims that can be heard by a judge sitting alone.
Irrespective of whether this is a good idea or not, I think that there are a few points worth noting about the way this has been done.
First, the legislation doesn’t say that the case has to be heard by a judge sitting alone. It says that it shall be heard by a judge sitting alone, but that a judge can direct a full panel to hear the case if, having regard to any views expressed by the parties, there is a likelihood of a dispute on facts or law that make it desirable for the case to be heard by a full tribunal (section 4(5) Employment Tribunals Act 1996).
One of the objections put by those in favour of a full panel hearing unfair dismissal cases is that unfair dismissal cases often involve complex questions of fact which the non-legal members are well placed to assess and deal with. Any employment judge who feels that way will be perfectly entitled to order that the claims are heard by a full panel.
In practice, hearings with a full panel in the jurisdictions that can currently be heard by a judge sitting alone are very rare. I have only had one in my career, which was where it was a claim for unpaid wages that was, in essence, a test case for hundreds of employees. Both employer and employee wanted the case heard by a full tribunal, and the employment judge agreed. It will be interesting to see how things settle down and whether there are employment judges who are ready routinely to order unfair dismissal cases to be heard by a full panel.
Second, there does not seem to be any exclusion for the “special” unfair dismissal cases where the employee will argue that the reason for the dismissal is automatically unfair, such as in whistleblowing cases.
Such cases are often hard-fought and involve subtle inferences being drawn. It may well be that judges will be draw towards ordering a full panel in such cases, but this will have to be done in individual cases as there is no general carve-out.
Third, this increases the odd distinctions between “detriement” and “dismissal” cases. Whistleblowers and some others can bring claims on the basis that they have suffered a detriment (something bad has happened to them) as a result of their actions. Where the bad thing is dismissal, this has to be brought as an unfair dismissal claim. Detriment claims already have different rules on causation and the burden of proof to dismissal claims. This now adds a further distinction – detriment claims have to be heard by a full panel, but dismissal claims can be heard by a judge alone.
One thing that I have not yet seen any discussion of is whether, when the new law comes in to force, it will be predominantly employers or employees who make applications for cases to be heard by a full panel. This may be a tribute to the generally balanced nature of employment tribunals, but it will be interesting to see if in practice it is employees or employers who press the case for a full panel to hear the claim.