Between us we’ve got several decades of experience in employment tribunals. We’ve seen nothing to suggest there is any type of corruption or systematic wrongdoing going on.
But many people who go through the system are left deeply unhappy and with the sense that it has failed them. Some conclude that it is corrupt. It seemed worth addressing this explicitly — and explaining what we mean when we say the tribunal isn’t corrupt.
At the most basic level, you can’t bribe an employment judge. Admittedly we’ve never heard of anyone trying. Yet we’re absolutely sure anyone who did would be immediately reported to the police by the outraged judge.
Similarly, with extremely rare exceptions, judges don’t sit on cases where they have a personal interest or might reasonably be thought to have a personal interest. If they do, there will be grounds for appeal. There are no smoke-filled back-rooms where favours are exchanged or arms twisted.
We also don’t think that there’s any general prejudice against claimants (or for that matter respondents).
Employment Judges are doing what they claim to be doing: trying to decide each case fairly. More than that, the vast majority are highly-competent, dedicated professionals who work hard at a difficult and stressful job.
This doesn’t mean that the system is perfect, or anything like it. It often fails and often causes genuine injustice.
The tribunal has to apply the the law and procedure it is given. The law is imperfect — sometimes simply unfair — so applying it does lead to injustice.
And judges aren’t perfect. They are flawed people like the rest of us. Which means they can lose their temper when they shouldn’t; miss the point or otherwise fall short of the ideal. When this happens, it can lead to unfair results.
And – like everyone else on the planet – judges have their own assumptions and inherent preferences. Some do have an instinctive preference for the authority figure in the case. (Lots of people do; read about the Milgram experiment, and wonder if you’d have passed the test.) Others have an anti-authoritarian streak. Some get reputations; employment lawyers often describe judges as ‘pro-claimant’ or ‘pro-respondent.’ Broadly speaking, those reputations are deserved. But this doesn’t mean that the judges aren’t doing their best to decide each case fairly, according to their lights; it’s just that their lights can vary. When we say that a judge is ‘pro-claimant’ we don’t mean that they’re bound to find in favour of the employee whatever the circumstances. We mean they’re a bit more sympathetic, a bit more likely to come down on that side rather than the other. Most cases will end with the same result, regardless of the judge.
Beyond the inevitable individual kinks of the judiciary, any legal system simply has its limits. There is no perfect system that will always get the right result.
In every case, tribunals hear evidence, consider submissions and try to reach the right decision. This isn’t easy. When they start hearing a case, tribunals know nothing about the parties and have no knowledge of the relevant events. All they know is what they’re told in the tribunal room. And tribunals have no magic powers to detect honesty. Cross-examination can illuminate the truth, but it can also obscure it. All lawyers have had cases where a witness they believed to be basically honest fell apart and was made to look thoroughly shifty under cross-examination, because they got confused or brow-beaten.
This problem is made worse by unfairnesses and imbalances within society. In an ideal world, everyone who came before the tribunal would be competently represented and have much the same resources, not only in terms of money, but also intelligence, education, language and confidence. In the real world, some parties can afford lawyers, and some can’t; some parties are clever, articulate, able to present their case, and some aren’t; some have the confidence to tell the truth, warts and all – and thus gain the tribunal’s respect; some feel so powerless and backed into a corner that telling the tribunal what they think it wants to hear seems like the only option. Tribunals are not unaware of these issues; they do their best to see past them. But all the same, all too often the parties are not on an equal footing. In the context of employment this normally means the employee is disadvantaged.
In these circumstances, tribunals can’t always get the answer right. We think they’re right significantly more often they’re wrong (at least in the sense of reaching the conclusion the law requires). But this is of limited consolation if you’re in the 20% or so of cases where they simply get the wrong result.
Any justice system is imperfect and the employment tribunal is no exception. But being less than perfect isn’t the same as being corrupt.
Finally, it’s worth saying that, despite its imperfections, the tribunal also does a lot of good. Claimants do win their cases and receive their compensation. More than that, the existence of the tribunal and its ability to hold employers to account does have a wider impact on employment relationships. Many employers act a little better (or at least a little more lawfully) because of the implicit pressure of their employee’s ability to enforce their legal rights.