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Role of lay members in employment tribunals ‘needs to be reviewed’

Introduction of fees has 'undoubtedly caused difficulties', president of tribunals says

19 February 2014

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The role of lay members in employment tribunals "needs to be reviewed", the senior president of tribunals has said.

David Latham said there were "considerably fewer" cases in which non-legal members sat, after they ceased to be involved in unfair dismissal cases from April 2012.

Latham also said that the introduction of fees in employment tribunals last summer had "undoubtedly caused difficulties", resulting in a "surge in claims" immediately before introduction and a reduction afterwards.

He said that "time will tell as to what the ultimate effect" is but there is no doubt that the "landscape of employment law" would substantially change.

Kerry Underwood, chairman of Underwoods, said he took the mention of a "review" to mean that lay members "could be axed", which would take away the heart of the employment tribunal system.

Underwood, a former employment judge, said the presence of lay members "gave validity" to the system.

"There were times when the lay members stopped me from a making a stupid mistake.

"I was always very pleased to have help from those more experienced than me. I've not got any experience of the factory floor or running a big company. The lay members are the best thing about the system."

Underwood said he was "completely against" the decision to remove lay members from unfair dismissal cases, which were "virtually always fact-sensitive" and said the decision was taken "purely to save money".

He added the introduction of fees, which had reduced the number of claims by around 80 per cent, was an attack on access to justice which could lead to more strikes and ill-feeling in the workplace.

However, Rob Riley, partner at Addleshaw Goddard, said that in most cases, decisions were made by judges and not lay members.

"You don't see the deliberations, so you can't say for sure, but most often the judges' decisions sway the lay members.

"They are there to balance the judge's view, but I'm not sure how effective that is. Employment law is quite technical now, and a lot of cases are decided on the law.

"I doubt if employers have strong views on the issue either way. We already have judges sitting alone in many cases".

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Tribunals & Courts