RESEARCH REPORT: ADJUDICATION IN THE EMPLOYMENT TRIBUNAL
| Volume 24 Number 3 | October 1999 |
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RESEARCH REPORT: ADJUDICATION IN THE EMPLOYMENT TRIBUNAL
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How parties fare in the Tribunal is naturally of interest to both practitioners and scholars, as are indications of what factors seem to make the difference between winning and losing. To explore those topics, I will, for clarity of presentation, limit the sample to just the substantive personal grievance decisions issued by the Tribunal in the years 1992 through 1997 inclusive. Those decisions - again just on the primary grievance claim in each application - number slightly over 2200.
In the adjudication of a dismissal claim, there are sometimes many points of substance or procedure or even jurisdiction encompassed within the overall question of whether the employer's action in dismissing the employee was one that was justifiable in all the circumstances. A party can, then, 'win' a dismissal case without wholly winning the case. The most obvious example would be where the applicant employee is found to have been unjustifiably dismissed, but to have contributed to the situation in such a way and to such an extent that the remedies to the applicant are required to be reduced. So a 'win' in a personal grievance claim is often a matter of degree rather than a matter of absolutes.
For purposes of our analysis, a successful outcome for the employee - a 'win' - consists of a finding by the Tribunal that the employee has a personal grievance of (usually) unjustified dismissal or (occasionally) disadvantage or sexual harassment or discrimination or duress. Defined in these terms, Table Two shows that applicants were successful in close to two-thirds of personal grievance claims determined by Tribunal adjudication decision in the years 1992 through 1997.
Table Two: Grievance Outcomes
| Grievance Outcomes | Frequency | Percent |
| Grievant Won | 1420 | 64.3 |
| Grievant Lost | 788 | 35.7 |
| TOTAL | 2208 | 100 |
In an adjudication case where the applicant has been successful to the point of a finding that he or she has a personal grievance, then the Tribunal is required to turn its attention to consideration of remedies. The available remedies are reinstatement of the applicant to the position from which he or she was dismissed, reimbursement of lost remuneration, compensation for loss of benefits, and compensation for humiliation, loss of dignity and injury to feelings. The outcome of a case can be measured on the basis of any of these remedies, or all of them, in addition to the straight 'win-lose' dimension.
Of the available remedies, compensation for humiliation, loss of dignity and injury to feelings - often referred to by the shorthand 'hurt and humiliation' - is probably the most useful measure of case outcomes because it is almost universally claimed by grievance applicants, and because it is arguably the remedy over which the Tribunal has the greatest discretion. Table Three shows the distribution of compensation awards for hurt and humiliation to grievants successful in winning their cases in adjudication in the years 1992 through 1997.
Table Three: Compensation for Humiliation, Loss of Dignity
and Injury to Feelings
| Level of Compensation | Frequency | Percent |
| No Compensation Awarded | 179 | 12.6 |
| Up to $5000 | 845 | 59.5 |
| Between $5001 and $10000 | 316 | 22.3 |
| Over $10000 | 80 | 5.6 |
| TOTAL | 1420 | 100 |
As has been widely reported and regularly documented by Department of Labour statistical reports, the vast majority of compensation awards in successful personal grievance claims fall between one dollar and ten thousand dollars. While I could break those numbers down to much greater detail, the categories in Table Three are sufficiently precise for analytical purposes.
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