Non-legal panels set to be removed from most ET hearings
By John Hyde >>
(31 January 2023)
Employment tribunal hearings could be heard by a judge alone as a default, replacing the current system of having three-person panels sit on the most complex cases.
In a consultation published yesterday, senior president of tribunals Sir Keith Lindblom said the aim must be to create a ‘more efficient and consistent pattern of panel composition’. This would involve reductions in panel size where that is justifiable, and potentially scrapping the system of allowing judges to sit alone for certain types of cases and not for others.
Lindblom said including non-legal members on the panel can affect the length of time involved or extend the time taken to make a decision or judgment. Listing hearings on dates convenient for three members of a panel is also more difficult than where a judge can sit alone.
‘The cost to the justice system of deploying members is significant,’ he added. ‘For these reasons, as well as for the general imperative of using the resources of the tribunals efficiently and prudently, it is important that non-legal members are used only where they are needed.’
Lindblom gave ‘little weight’ to the suggestion that a full panel was needed to assure parties they were getting a fair hearing and said there was no ‘inherent unfairness’ in a hearing before a judge alone.
When originally set up, panels in industrial tribunals consisted of a legally qualified chair and two non-legal members, one usually nominated by a union and the other from a business group. The split between an ‘employer panel’ and ‘employee panel’ still exists, but Lindblom dismissed the concept of shaping panels ‘merely to satisfy public perception alone’.
He added: ‘The original panel arrangements in this tribunal jurisdiction have been described as being “intended to help overcome the mistrust by labour and the unions of traditional courts”.
‘Despite that supposed mistrust, the ETs and EAT have over several decades successfully established themselves as judicial bodies. Their standing is not dependent on public opinion. What is important here is the actual contribution that non-legal members make to the tribunals’ decisions, in the interests of justice and access to justice.’
He acknowledged that non-lawyer panel members are more likely to be female, come from ethnic minorities and be people with disabilities. Removing them from hearings could reduce representation of these groups in the tribunal. Lindblom also noted the argument that deploying experienced non-legal members can inform the tribunals’ decision-making on crucial issues.
But the current provisions, he argued, do not help to identify the specific cases where this experience would be an advantage: instead, using panels for all discrimination and whistleblowing cases ‘may be too broad’.
‘Given the complexity of discrimination and whistleblowing cases, such claims often succeed or fail on legal points which members’ knowledge may have little bearing upon. Deploying members as a rule in such cases seems a wasteful use of hard-pressed resources.’ Unfair dismissal claims in the employment tribunal are already heard by a judge alone by default.
The consultation runs to 27 March.
(Courtesy: The Law Society Gazette)