In a recent judgment the Court of Appeal has stressed that employment tribunals are not, and never have been, courts (Governing Body of St Albans Girls' School & anor v Neary, 12th November 2009). In some ways this is a distinction without a difference. But in other ways it can be extremely important.
Industrial Tribunals were originally established under the Industrial Training Act 1964. Their importance grew significantly when the statutory concept of "unfair dismissal" came into existence under the Industrial Relations Act 1971. The idea was that these tribunals would be managed by non-lawyer members with a legally qualified chairman and with proceedings being conducted in an informal way.
The Industrial Tribunals were given, and still have, exclusive jurisdiction in categories of cases specified by Parliament. The originally quite short list has grown longer and longer over the years - a complete list is available on the tribunal service website. The idea was and is that the courts, and the formality associated with them, would not be involved except where there was an appeal on a point of law.
In practice industrial tribunals, renamed employment tribunals in 1998, have found it difficult to combine fairness with informality. In particular it has been difficult for legally qualified chairmen, often with years of experience as advocates in the courts, to operate with the degree of non-legalistic informality which the original proposers of the system intended.
The St Albans Girls' School case noted above was concerned with the difference between procedural rules in the Courts and in tribunals.
A supply teacher, Anthony Neary, brought various claims against St Albans Girls' School and Hertfordshire County Council. An employment tribunal struck out his application because he failed over a quite long period to provide documents and comply with directions. His application for a review of the strike out order was rejected. He appealed to the Employment Appeal Tribunal against that rejection and won because the original tribunal had failed expressly to consider "factors" set out in the Civil Procedure Rules which apply when similar applications are made in the Courts.
The School went to the Court of Appeal. The Court of Appeal pointed out that tribunals are not courts. The Civil Procedure Rules may provide useful guidelines for tribunals but no more than that. The Court of Appeal considered that the employment judge had acted properly in the way he exercised his discretion, overruled the EAT and reinstated the original decision. The Court of Appeal said that "the proposition that [employment] judges should have regard to the [factors set out in the Court Rules] seems to have metamorphosed, as the cases came along, into a positive requirement that each and every one be discussed".
In addition to differences in the rules of procedure there are other major differences between Courts and Tribunals. Two of the most important are (i) that in many types of case (but significantly not discrimination cases) there is a statutory limit on the amount of compensation which an employment tribunal can award; and (ii) that the Courts generally order the losing party to pay costs. In employment tribunals the general rule is that no costs order is made, and if one is made it will generally be on the basis that the party concerned, whether winner or loser, conducted his case "vexatiously, abusively, disruptively or otherwise unreasonably".
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