Lay members and the Tribunal system
Labour & European Law Review Weekly Issue 244 17 November 2011
New research on the role of lay members in employment rights cases, which has been published ahead of the government’s response to its Resolving Workplace Disputes consultation, shows the value they bring to Employment Tribunals.
The Role of Lay Members in Employment Rights Cases – survey evidence, produced by the Universities of Greenwich and Swansea shows that, for employment judges, the most important contribution of lay wing members is their general workplace experience followed by their ability to provide a non-legal perspective.
The survey also looked at the jurisdictions in which lay members are considered by judges to add particular value. Top of the list was discrimination, followed by unfair dismissal with breach of contract coming towards the bottom.
Although lay members considered that their most important contribution was ensuring a balance between a legal and non-legal perspective, they also rated their ability to identify issues that needed to be explored both before and during hearings.
Both groups agreed that while a three-member Tribunal panel was likely to be more intimidating than a judge sitting alone, it was also likely to have greater legitimacy in the eyes of the parties. Lay members held this view particularly strongly.
In terms of the characteristics of judges, the research found that they are predominantly male (63 per cent) with a common age of between 60 to 64. As a group they are almost exclusively white with just four per cent from black or minority ethnic (BME) groups.
Lay members were also overwhelmingly from a similar age group to judges but only 55 per cent were male and six per cent were from BME groups.
The researchers sent questionnaires to all judges and lay members sitting at both Tribunal and appeal level. The response rate for judges and members in Tribunals was 45 and 64.1 per cent; while at appeal level it was 80 and 73.6 per cent for judges and lay members respectively.
The government says it will publish its response to Resolving Workplace Disputes, which proposed that unfair dismissal cases should normally be heard by an employment judge sitting alone, in “the coming weeks”.
Thompsons’ response to the consultation pointed out that “Wing members bring important industrial experience to the Tribunal panel – something that a judge is unlikely to have.”
Read also Thompsons response to Resolving Workplace Disputes.