Employment tribunal applications analysed

A survey of UK employment tribunal applications in 2003 confirms previous evidence showing limited formal workplace means to handle disputes between individual employers and employees. The results act as a benchmark of existing practice, ahead of the implementation in October 2004 of new statutory minimum dispute resolution procedures.

Employment tribunals (ETs) adjudicate disputes arising between individual employers and employees, including those around unfair dismissal and sex and race discrimination (UK0403101T). The Survey of Employment Tribunal Applications 2003 (SETA 2003), the fourth in a series going back to 1987, provides information on the parties to cases reaching tribunals, together with key features of the handling of cases (Findings from the Survey of Employment Tribunal Applications 2003, B Hayward, M Peters, N Rousseau and K Seeds, Department of Trade and Industry[DTI] Employment Relations Research Series 33). It establishes existing practice ahead of new legislation contained in the Employment Act 2002 (UK0210103F) which came into effect on 1 October 2004. This requires all employers and employees to follow minimum dispute resolution procedures embracing: a written statement of behaviour that may lead to dismissal or disciplinary action; in the event of such action by the employer, an invitation to the employee to meet to discuss the issue; and the right of appeal (UK0408102F).

The number of applications to ETs roughly trebled over the period 1990-2003. In the year 2003-4 it was about 115,000 (according to the Employment Tribunals Service annual report, 2004).

The SETA 2003 survey generated a statistically representative sample of 4,517 ET cases that were completed between March 2002 and March 2003. Separate surveys of people bringing cases (applicants) and of employers involved in cases were conducted; these were not matched to provide data from the same cases. Its results are complemented by a separate study that followed up the previous survey of 1998. This identified cases where the parties used representatives to advise on or present their cases. A total of 452 representatives were interviewed about their role (Findings from the 1998 survey of representatives in employment tribunal cases, P Latreille, J Latreille and K Knight, DTI Employment Relations Research Series, no. 35).

A third source of information is a study of 100 applicants, based on a questionnaire and interviews with 20 of this group, conducted by researchers at Coventry University ('The experiences and perceptions of applicants who pursue claims at employment tribunals', G Hammersley and J Johnson, paper presented at the Work, Employment and Society conference, Manchester, September 2004).

The parties

Key features of applicants in SETA 2003 include the following:

• the great majority were in permanent jobs. Those with permanent full-time positions were under-represented compared with the workforce as a whole;

• applicants had a mean length of service with their employers of six years;

• about a quarter belonged to a trade union or staff association, a proportion similar to that among employees nationally; and

• managerial occupations were notably over-represented.

The features of employers confirm the pattern of previous surveys:

• ET applications came disproportionately from manufacturing, construction, hotels and restaurants, and the transport and communication sector;

• small workplaces and small organisations were particularly over-represented; and

• for 45% of employers, the case under discussion was the only one in which they had been involved in the previous two years.

Disciplinary procedures

The previous survey, published in 1998, highlighted the fact that, in about 37% of cases, there was no meeting to discuss the issue that led to an ET claim and no use of a written procedure, and there was no other attempt to resolve the dispute. The present results confirm that procedural formality is far from the norm.

Written disciplinary and grievance procedures were reported by 41% of applicants (but 84% of employers). Where such procedures existed, only a fifth of applicants and half of employers said that they had been followed through all their stages. Just under half of applicants and employers reported discussion of the issue prior to its being taken to a tribunal. Of these, 57% of applicants and 81% of employers reported a formal meeting. At such meetings, about half of applicants were accompanied by a trade union or other representative.

ET process

Just over half of applicants and employers used representatives to help handle their cases. Legal professionals (solicitors) were much the most commonly used representatives, being mentioned by half of applicants who were represented; trade unions were used more rarely (by 20% of those represented). Two-thirds of represented applicants reported that all the advice received was free.

Of cases entering the ET system, only a minority reached decision at a tribunal. Applicant and employer responses were in agreement that almost half were settled through conciliation by the Advisory, Conciliation and Arbitration Service (Acas). Another one-third were withdrawn or settled privately. This left just under one-fifth that went to a tribunal, with 10% of applicants being successful and 9% unsuccessful.

At tribunal hearings, cases were most often presented by a legal representative. In over half of cases, however, one party or the other did not attend or the case was presented by someone other than a legal representative.

Perceptions and outcomes

Three-quarters of applicants and of employers felt that the ET hearing gave each party a fair chance to make its case. Slightly smaller proportions were satisfied with the workings of the ET.

The great majority of tribunal awards were financial (rather than, for example, reinstatement of a dismissed employee). Just over half of applicants, and two-thirds of employers, were very or quite satisfied with the outcome. Of applicants dissatisfied, few mentioned reinstatement as a desired option, with an apology or proving they were right being the main ways in which they might have been more satisfied.

The Coventry University study complements these findings. Its authors acknowledge that participants in it may have been particularly dissatisfied, and it may not be offer a representative picture. But it highlights two themes. First, applicants brought cases out of a sense of fairness or a desire to pursue justice, with several stressing managerial incompetence and a desire for personal vindication. Second, there was some concern at the quality of representation. This included a perceived tendency for legal representatives employed on a contingency ('no win, no fee') basis to press for a quick settlement and to take undue 'ownership' of the case.

Employers in the SETA 2003 study reported changes in policy as a result of the ET case. Just over half mentioned ensuring that procedures were followed, while a third would seek professional advice prior to taking disciplinary action.

Costs and benefits

Applicants reported financial and non-financial costs of taking a case. Two-thirds said that they had incurred personal financial costs. The mean number of days spent on their case was 25. A third stated that the case had caused them stress and depression. The Coventry University study provides qualitative illustration of such results. Of those who had moved to new jobs, however, the pay and grading of the new job was generally similar to that involving the ET case.

Employers reported spending a mean of 10 days on the case. The main negative effects reported were low staff morale and increased stress levels.

Representatives’ survey

The representatives studied following the 1998 survey were found to have considerable experience of the ET system. Their views were thus felt to carry weight. They reported considerable satisfaction with the role of Acas: 87% were satisfied overall in relation to the case subject to the survey; more than three-quarters could trust Acas conciliators 'a lot'; and more than half said that the Acas officer was important in helping to reach a settlement. Representatives often advised clients on their chances of winning a case, and were thus influential in determining the outcome.

Commentary

Perhaps the key implication of the research is the limited depth of procedural justice in the workplace. As the report on SETA 2003 concludes, 'many workplaces fall short of the proposed [new] minimum requirements' particularly 'smaller workplaces and organisations'. One might expect a ratchet effect, whereby employers experience ET cases and learn to adopt and apply formal procedures. Yet the 2003 picture of the use of such procedures is not very different from that from previous surveys. It is true that, in the aftermath of a case, employers will report improving their procedures. But other research suggests that good intentions tend to evaporate. It is also notable that applicants’ awareness of written procedures and their use was lower than that of employers. This suggests that communication about such procedures could often be improved.

The fact that applicants had worked for the employer for, on average, six years suggests that cases going to tribunals reflected substantial issues of how employees felt that they were treated. SETA 2003 and the Coventry University study show that applicants who were dissatisfied with the outcome of their case were concerned with obtaining what they saw as justice, rather than simply more money.

As for the ET system itself, the number of cases resolved by Acas and general satisfaction with the outcome of cases suggest that it is a useful mechanism. But it remains a system with clear costs for the parties. Some applicants can suffer considerable stress in taking an intensely personal issue through a complex legal process. A comprehensive system of workplace justice remains absent for many workers. There is considerable room for the new statutory dispute resolution procedures to have an effect. (Paul Edwards, IRRU)