Are Industrial Tribunals fair and effective?

[Tetchytyke]

Moderator note - split from:

Hull Trains Strike over dismissal

So its been reported that Hull Trains are going on strike because someone got sacked. Now I dont know if it was a justified or unjustified sacking. But surely this is riddiculous. Why dont they just go for unfair dismissal and take Hull Trains to court if they dont agree with the decision?

www.railforums.co.uk

Iirc, Covert recordings cannot be used as evidence.

They can’t, and that’s another big weakness with the tribunal system, especially when it comes to bullying or false dismissal claims. The only concrete evidence a claimant will often have is recordings from meetings where the employer speaks freely, knowing it can’t be used against them. The paperwork often won’t prove anything.

The system is a mess, as seen by the fact the Philip Lancaster is still in post in Leeds despite this:

More women accuse Leeds employment tribunal judge of bullying

Three more women accuse an employment tribunal judge of bullying during hearings.

www.bbc.com

Three more women have accused a judge of bullying during employment tribunal hearings.

They say Judge Philip Lancaster was belittling and intimidating and made them feel stupid while they presented their cases. One said she felt his behaviour in her case verged on psychological abuse.

The three women have spoken out following a BBC report in April in which five women accused Mr Lancaster of bullying and sexist behaviour.
A spokesperson for the Judiciary Office, which supports the judiciary across courts in England and Wales, said judges cannot comment on matters of conduct due to constitutional arrangements.

It said allegations of misconduct in court can be referred to the Judicial Conduct Investigation Office.

The JCIO refused to even investigate.

And even if you do win you’re still out of pocket, as you normally have to pay your legal costs out of your settlement. Which is nice, given that the compensation is usually limited to the difference between what you could have earned and what you did earn following the dismissal.

The fact that trade unions will go to the lengths of strike action in order to circumvent the employment tribunal system shows, in my opinion, just how flawed the tribunal system is in this country. All the cards are stacked against claimants from the outset. No wonder trade unions have no faith in the system.

 

[Clarence Yard]

Where recordings have been admitted, they usually have to be a recording of the whole conversation (not part of it) and the parties were fully aware that the conversation was being recorded. Someone also has to pay for it to be transcribed.

There have been some exceptions to this but at an employment tribunal, you run the risk of misconduct if you haven’t declared you are recording the conversation. You also run the risk of a counter claim that you are infringing the other persons rights.

It’s a legal minefield which tribunals like to steer well clear of. If it isn’t classed as relevant and seems to be a partial extract, it will be classed as inadmissible.

 

[DJ_K666]

Where recordings have been admitted, they usually have to be a recording of the whole conversation (not part of it) and the parties were fully aware that the conversation was being recorded. Someone also has to pay for it to be transcribed.

There have been some exceptions to this but at an employment tribunal, you run the risk of misconduct if you haven’t declared you are recording the conversation. You also run the risk of a counter claim that you are infringing the other persons rights.

It’s a legal minefield which tribunals like to steer well clear of. If it isn’t classed as relevant and seems to be a partial extract, it will be classed as inadmissible.

Yeah I've heard the permission to record thing before, and if you've got the request and consent being given on the recording then there's no ambiguity. But that consent has to be unequivocal.

I often think if an employer refuses permission to record then they're planning something underhanded. But then I don't really trust management anyway, whether on the railway, the buses or wherever.

Surely the union should pay for the transcriber?

 

[mpthomson]

Thanks for the clarification. Do you know if they transcript thing is legal?

As above, no if covertly obtained without the other party's knowlwedge, as the evidence has been obtained unlawfully.

== Doublepost prevention - post automatically merged: 16 May 2025 ==

Yeah I've heard the permission to record thing before, and if you've got the request and consent being given on the recording then there's no ambiguity. But that consent has to be unequivocal.

I often think if an employer refuses permission to record then they're planning something underhanded. But then I don't really trust management anyway, whether on the railway, the buses or wherever.

Surely the union should pay for the transcriber?

It's stated very clearly in any large company's disciplinary policy. No party is able to record meetings/hearings and minutes/notes will be taken.

== Doublepost prevention - post automatically merged: 16 May 2025 ==

They can’t, and that’s another big weakness with the tribunal system, especially when it comes to bullying or false dismissal claims. The only concrete evidence a claimant will often have is recordings from meetings where the employer speaks freely, knowing it can’t be used against them. The paperwork often won’t prove anything.

The system is a mess, as seen by the fact the Philip Lancaster is still in post in Leeds despite this:

More women accuse Leeds employment tribunal judge of bullying

Three more women accuse an employment tribunal judge of bullying during hearings.

www.bbc.com

The JCIO refused to even investigate.

And even if you do win you’re still out of pocket, as you normally have to pay your legal costs out of your settlement. Which is nice, given that the compensation is usually limited to the difference between what you could have earned and what you did earn following the dismissal.

The fact that trade unions will go to the lengths of strike action in order to circumvent the employment tribunal system shows, in my opinion, just how flawed the tribunal system is in this country. All the cards are stacked against claimants from the outset. No wonder trade unions have no faith in the system.

This isn't correct, judges can (and routinely do) award over and above that if appropriate, especially if the tribunal evidence is based around Equality Act issues where compensation isn't limited. However in the large majority of tribunals the employee has at least partly contributed to their own dismissal, so that will mean less an amount for their own behaviour. The spectacular ones you see in the press with corporate terrible behaviour are very much the minority. If an employee wins a tribunal the employer normally picks up their expenses as well. I've never had one where that has not been the case, even if the financial award has been zero due to the employee's behaviour.

It's nothing like as skewed towards employers as people like to make out. My experience of many tribunals is that if you've cocked up HR process as an employer then you're going to be found against, almost inevitably. Disagreeing with the policy/sanctions in play, which sounds like what ASLEF are doing from the limited info available, is a different matter but as long as it is not manifestly unfair then a tribunal is going to be much less interested in it, other than did the employer follow it correctly and in full. If the sanction is reasonable for any alleged 'offence' and applied fairly, ie others weren't treated differently under a similar circumstance then the judge will find in favour of the employer.

== Doublepost prevention - post automatically merged: 16 May 2025 ==

I don’t see how that you can possibly conclude that unless you have inside knowledge. The company can reinstate if it wishes to, if it concludes the union action makes it worth doing commercially.

The tribunal’s decision isn’t relevant to the outcome of the industrial action - all a tribunal will do is confirm whether the decision to dismiss was within the range of reasonable responses open to the employer. It doesn’t follow that the employer can’t also choose to take a different approach.

I can conclude that after sitting through a good number of tribunals involving staff misconduct and/or disputed HR processes in a (different) safety critical industry. If the company has dismissed due to a found safety critical issue then they aren't ever going to reinstate wthout being directed to as they've then fundamentally given carte blanche for anyone else to do it as well, without fear of dismissal due to the precedent set by the reinstatement. It's that simple and it's not going to happen.

There's been a failed appeal meaning that the company is content it made the right decisons initially.

 

[John R]

Where recordings have been admitted, they usually have to be a recording of the whole conversation (not part of it) and the parties were fully aware that the conversation was being recorded. Someone also has to pay for it to be transcribed.

There have been some exceptions to this but at an employment tribunal, you run the risk of misconduct if you haven’t declared you are recording the conversation. You also run the risk of a counter claim that you are infringing the other persons rights.

I had a member of staff dispute his annual review score with me (I gave average, he wanted above average to increase his bonus), and wouldn't accept it. We had a 45 min discussion about it, at the end of which he told me he had recorded it all. That resulted in a disciplinary hearing by HR, the result of which was a formal warning, and as a consequence he lost the whole of that year's bonus, amounting to a few thousand pounds. Karma!

 

[DJ_K666]

They can’t, and that’s another big weakness with the tribunal system, especially when it comes to bullying or false dismissal claims. The only concrete evidence a claimant will often have is recordings from meetings where the employer speaks freely, knowing it can’t be used against them. The paperwork often won’t prove anything.

The system is a mess, as seen by the fact the Philip Lancaster is still in post in Leeds despite this:

More women accuse Leeds employment tribunal judge of bullying

Three more women accuse an employment tribunal judge of bullying during hearings.

www.bbc.com

The JCIO refused to even investigate.

And even if you do win you’re still out of pocket, as you normally have to pay your legal costs out of your settlement. Which is nice, given that the compensation is usually limited to the difference between what you could have earned and what you did earn following the dismissal.

The fact that trade unions will go to the lengths of strike action in order to circumvent the employment tribunal system shows, in my opinion, just how flawed the tribunal system is in this country. All the cards are stacked against claimants from the outset. No wonder trade unions have no faith in the system.

Ah Philip Lancaster. I've heard about him.

 

[43066]

They can’t, and that’s another big weakness with the tribunal system, especially when it comes to bullying or false dismissal claims. The only concrete evidence a claimant will often have is recordings from meetings where the employer speaks freely, knowing it can’t be used against them. The paperwork often won’t prove anything.

The system is a mess, as seen by the fact the Philip Lancaster is still in post in Leeds despite this:

More women accuse Leeds employment tribunal judge of bullying

Three more women accuse an employment tribunal judge of bullying during hearings.

www.bbc.com

The JCIO refused to even investigate.

And even if you do win you’re still out of pocket, as you normally have to pay your legal costs out of your settlement. Which is nice, given that the compensation is usually limited to the difference between what you could have earned and what you did earn following the dismissal.

The fact that trade unions will go to the lengths of strike action in order to circumvent the employment tribunal system shows, in my opinion, just how flawed the tribunal system is in this country. All the cards are stacked against claimants from the outset. No wonder trade unions have no faith in the system.

I think this post sums up the position very well; employment tribunals just aren’t an effective solution in many situations.

 

[mpthomson]

I think this post sums up the position very well; employment tribunals just aren’t an effective solution in many situations.

It doesn't as it's full of misconceptions and errors around how they work.

 

[JGurney]

In my own experience, limited to being a witness at one and taking HR students to observe numerous cases, they are fair within the limits of their remit.
Basically what an ET is asking is did the employer comply with law, comply with their own policies and procedures, and treat the claimant's case consistency with their handling of similar cases? If they had then the question of whether the employers action was morally right is largely outside their competence.
I agree with mpthomson that if an employer has messed up following procedures they are likely to lose the case, but if they have followed all the rules then they will probably win however unjust or disproportionate the outcome might be considered in some opinions.

 

[mpthomson]

In my own experience, limited to being a witness at one and taking HR students to observe numerous cases, they are fair within the limits of their remit.
Basically what an ET is asking is did the employer comply with law, comply with their own policies and procedures, and treat the claimant's case consistency with their handling of similar cases? If they had then the question of whether the employers action was morally right is largely outside their competence.
I agree with mpthomson that if an employer has messed up following procedures they are likely to lose the case, but if they have followed all the rules then they will probably win however unjust or disproportionate the outcome might be considered in some opinions.

The employer will still lose if the sanction is manifestly disproportionate and it's clear that a lesser sanction could reasonably have been applied, especially if this wasn't rectified at appeal, but it's all about what the policy actually says in many cases.

 

[Tetchytyke]

If an employee wins a tribunal the employer normally picks up their expenses as well. I've never had one where that has not been the case

The advice I’ve always received when referring my clients to employment solicitors is that the general rule is that each party pays their own costs. The advice I’ve always had is that costs will only be awarded where the behaviour of one of the parties has been particularly egregious.

This stops claimants being on the hook for huge fees if they lose but also means that any of their own legal fees will come out of the award if they win.

If this advice isn’t accurate, I am interested to hear more about what happens in reality. I know that judges may be more minded to treat employers to a higher standard of behaviour than claimants, especially when it comes to “reasonably knowing a defence had no realistic prospect of success”, but that’s certainly not the same thing as “usually awarding costs”. So I’m genuinely curious as to your experience on this.

 

[mpthomson]

The advice I’ve always received when referring my clients to employment solicitors is that the general rule is that each party pays their own costs. The advice I’ve always had is that costs will only be awarded where the behaviour of one of the parties has been particularly egregious.

This stops claimants being on the hook for huge fees if they lose but also means that any of their own legal fees will come out of the award if they win.

If this advice isn’t accurate, I am interested to hear more about what happens in reality. I know that judges may be more minded to treat employers to a higher standard of behaviour than claimants, especially when it comes to “reasonably knowing a defence had no realistic prospect of success”, but that’s certainly not the same thing as “usually awarding costs”. So I’m genuinely curious as to your experience on this.

That's not what actually happens though, certainly not in my experience of them. Every time the tribunal has found against us we've had whole costs awarded against us, even if there's been claimant conduct issues that were relevant. We've never had our costs awarded/paid to us by the claimant when the tribunal goes in our favour (which is fine, it's a large organisation and we always have solicitors instructed so can't expect emplyees to pay for them).

 

[styles]

I suppose there's two prangs to this really.

The first is whether the tribunals are fair/effective with regards to their existing remit. Their existing remit is the current legislation, and the organisation's documented disciplinary procedures. To that end, I do feel they are fairly effective, in that if you can demonstrate the correct procedures were not followed, you get a payout, which is often a pretty reasonable sum for the impact caused. The tribunal won't mandate reinstatement of employment because that's not really their remit. There's not much they can do in that respect.

The second is whether their remit is sufficient. I appreciate that in UK law we deem it valid to dismiss an employee if the employer-employee relationship has broken down, and I don't totally disagree with this principle. But if an employment tribunal determines you were unfairly dismissed, not merely by procedural irregularities but by substantive reasons, then I am minded to suggest that the tribunal should be able to mandate reinstatement of employment (should the employee desire). Otherwise we're effectively saying you can sack whoever you like as long as you're willing to pay compensation to them, which I don't think is right. Of course, if you do this, the employer and employee need to make genuine efforts to repair their working relationship, and ultimately it may not work out, but if genuine effort is documented then all is grand.

 

[mpthomson]

I suppose there's two prangs to this really.

The first is whether the tribunals are fair/effective with regards to their existing remit. Their existing remit is the current legislation, and the organisation's documented disciplinary procedures. To that end, I do feel they are fairly effective, in that if you can demonstrate the correct procedures were not followed, you get a payout, which is often a pretty reasonable sum for the impact caused. The tribunal won't mandate reinstatement of employment because that's not really their remit. There's not much they can do in that respect.

The second is whether their remit is sufficient. I appreciate that in UK law we deem it valid to dismiss an employee if the employer-employee relationship has broken down, and I don't totally disagree with this principle. But if an employment tribunal determines you were unfairly dismissed, not merely by procedural irregularities but by substantive reasons, then I am minded to suggest that the tribunal should be able to mandate reinstatement of employment (should the employee desire). Otherwise we're effectively saying you can sack whoever you like as long as you're willing to pay compensation to them, which I don't think is right. Of course, if you do this, the employer and employee need to make genuine efforts to repair their working relationship, and ultimately it may not work out, but if genuine effort is documented then all is grand.

The latter power already exists and occasionally does happen where the employee has done nothing wrong (these cases are not that usual in a tribunal), but it's one of those situations where good intentions run smack bang into the reality of working relationships. To have got to a tribunal in the first place means that the relationship has nearly always irretrievably broken down, so any trust issues, either of employee trusting the employer or vice versa would likely be insurmountable. Most employees wouldn't want to work again for an employer that has unfairly dismissed them previously.