Employers may lose more appeals
Labour & European Law Review Weekly Issue 326 04 July 2013
According to research published last week, claimants who appeal against a tribunal decision have a better chance of success at an Employment Appeal Tribunal (EAT) if the decision is made by a judge sitting alone.
The research, carried out by the universities of Sheffield and Liverpool, found that the increase in success rates was more noticeable for employee-instigated appeals than those instigated by employers.
This is likely to be unwelcome news for the government which has just amended the law so that unless otherwise directed, a judge will now sit alone to hear appeal tribunal cases. It also changed the law a year ago so that employment judges sitting alone in a tribunal can hear unfair dismissal cases, unless a judge orders otherwise.
The change was introduced ostensibly to save money and to use tribunal resources more effectively, but as the researchers point out: “in the absence of quantitative empirical evidence about the impact of lay members on decision-making, policy-makers can have had little or no idea of the consequences of such change”.
Section 12 of the Enterprise and Regulatory Reform Act (which became effective on 25 June) may therefore have some unintended consequences, not least that employers (who urged the change on the government) will end up losing more appeals than before.
The research was funded by the Economic and Social Research Council and was based on an analysis of EAT administrative data for 4,800 appeals heard from 2001 to 2011 inclusive.
Iain Birrell of Thompsons’ employment rights unit said: “This fascinatingly counterintuitive research hints at underlying tensions about rebalancing what the employment judiciary considers to be reasonable behaviour within the modern workplace, but it is a genuine surprise that the main value of EAT lay members is apparently to employer appellants.
“It will be interesting to see whether the recent reforms misfire on the government since the Employment Tribunal decides 25 times more cases than the EAT does. The message for the employer lobby is perhaps, once again, be careful what you wish for.”