newsletter 15 - Chartered Institute of Personnel and Development

More Thoughts of a Tribunal Member
As I was leaving the tribunal office the other day, I
reflected that I had been a member of the august
body for about five and a half years. What have I
learnt? Certainly when people have asked me if I
enjoy sitting and hearing cases I always reply that I
am learning all the time and that I now know a lot
more employment law than I did years ago. This is
analogous to my previous incarnation as a lecturer,
when the best way to learn a subject was to teach it!
It’s true.
Although we have training sessions and are sent the IDS
fortnightlies and briefs we are of course guided by the chair as
to what the law says and most recent interpretations by EAT
and other courts. This helps because lay members like myself
may well not be au fait with the detailed nature of changes
such as one recent issue, when it was pointed out that
consultation under TULRA (CA) until 1995 had ìto begin at the
earliest opportunityî, but now consultation has to be “in good
time” – whatever that means! Whatever we think of the law
and regulations we have to keep our interpretations within it,
and that is an ever-present constraint. I remember in one of my
first cases, we could do nothing about an outrageous injustice
to an employee simply because the period of service was just
short of that required by the law.
This opens the question of whether tribunal members are
actually about dispensing justice, or something else. Because
justice, to my mind, is bound up with whatever laws exist, it
may be constrained severely. Fairness on the other hand is
different. I think that we are about fairness. If we cannot do
much about how the law is framed, then for both sides we can
do a good deal in terms of fairness. For fairness is more to do
with seeing the issue or circumstances in the appropriate
context. We have all the papers and witness statements, and
eventually final submissions, but actually hearing the
arguments, the claimants, witnesses and so on, brings home to
us the work environment, pressures, difficulties, and likes and
dislikes of all the actors, as it were.
This is relevant to proposals about the future of the tribunal
system also. An informal arbitration system, which
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governments have been pressing for some time, may be speedy,
and cheaper, and largely paper based, but as I said in an earlier
piece, what happens to the body of law and interpretations
which at present provide the back drop for our considerations?
How could an arbitrator ‘get into’ the work relationship, in
effect how could he or she analyse and assess what had been
going on?
A recent case I know of which was delayed and postponed,
which took months to hear because of attitudes and activities
of the parties, turned out very differently than the panel
thought after simply reviewing the paperwork. Because of the
actual process of hearing, the questioning, the adversarial to
and fro, the body language, the attitude of the parties to the
tribunal process, is on display, evaluation can and does change.
This is nothing to do with the law, for legal issues are sorted out
and debated before the ‘real meat’ of the case; rather it is to do
with, forgive the word, the sociology of the power and
influences at play in the work situation. This is particularly true
in a case where a direct clash of evidence suggest someone is
exaggerating hugely. The question of credibility comes to the
fore and it is doubtful that other systems of conflict resolution
would be able to comprehensively assess these in the way
tribunals do.
A final point is the “good management“ one. The CIPD
readership of this newsletter is already a converted one I know,
however, I would make the point that, without being
bureaucratic, the system as we have it clearly encourages firms
to think policy and procedures through, not least because to
ignore this is to invite a claim. All who serve in the tribunals
are aware that this does not bury
the odd wild card who may take
advantage of employer ignorance
or even ineptitude, but it does
point to the importance of good
policy and implementation, which
surely is a key element in the way
HR operates. And isn’t that
fair?
Ian Boraston
CIPD is a Registered Charity No:1079797