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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Of interest to practitioners is the part played by the parties' representation in influencing the outcome in Employment Tribunal adjudications. Parties are generally represented by lawyers or by advocates who are not lawyers, or by themselves. There are variations, of course, and sometimes they don't show up at all. The qualifications of representatives are not always immediately apparent from Tribunal decisions, so there is a fairly substantial 'unknown' category here. That is something that will be addressed by way of followup research in due course.
The nature of representation does seem to make a difference to grievance outcomes, at least in some respects. Table Six sets out the win-lose record for personal grievants in the years 1992 through 1997 by type of representation engaged by the applicant.
Table Six: Grievance Outcomes by Grievant Representation
Disregarding the 'unknown' category, it is apparent on the face of the table that applicants who represented themselves in adjudication were less likely to have been successful than those applicants who hired a representative. Some would no doubt find this to be reason for regret given the Tribunal's statutory charge to function as an informal and accessible adjudicatory body. The second point of note in Table Six is that, at least on these aggregate figures, there is no substantial difference in success rates between applicants represented by lawyers and those represented by non-lawyers.
Table Seven sets out the pattern of compensation awards to successful grievants for humiliation, loss of dignity and injury to feelings, arranged by type of representation used by the applicant at hearing.
Table Seven: Compensation for Humiliation, etc
by Grievant Representation
On the face of Table Seven it is apparent that there are differences in compensation awards, this time not only on the dichotomy of self representation versus professional representation, but also by the nature of that professional representation. Most obviously, by quite a clear margin, applicants represented by lawyers were more likely to have received awards over $5,000 than either self representing applicants or applicants represented by non-lawyers. Legal qualifications themselves may be a causal factor, of course, but it would be premature to jump immediately to that conclusion. It may, for example, be the case that dismissed workers with better cases are more inclined to seek help from lawyers. Or it may be that dismissed managers - the occupational group most likely to have been successful in adjudication - is more disposed towards, or has more direct access to legally trained representation than some other occupational groups. And there may be other causal factors beyond what we are able to deal with in this short analysis. Still, the pattern of compensation by nature of applicant representation is there.
Of course respondents have representation options too. Table Eight sets out the win-lose pattern in 1992-1997 grievance adjudications arranged according to representation at hearing for the respondent employer.
Table Eight: Grievance Outcomes by Employer Representation
One difference here is that, while there are very few applicants who do not appear at the adjudication hearing of their cases (for neatness, the few have been absorbed in the 'unknown' category for our analysis), respondents fail to appear to defend the grievance claim often enough to warrant a separate category under employer representation.
Predictably, applicants usually win when the respondent fails to appear. Beyond that, what shows out in Table Eight is that employers who self-represent aren't too much more successful than those who don't show up at all. Clearly, where the respondent employer was professionally represented, whether by a lawyer or non-lawyer, the applicant was much less likely to have been successful than when the employer either did not appear at hearing or appeared without professional representation.
Finally, Table Nine presents the distribution of compensation awards to successful grievants for hurt and humiliation, arranged by the nature of employer representation at hearing.
Table Nine: Compensation for Humiliation, etc
by Employer Representation
On the face of Table Nine, it is difficult to immediately discern a pattern in the higher compensation ranges that flatters professional representation. Employers who did not appear at hearing were more likely than others to be paying out compensation, and more likely to be paying out compensation above $5,000. On the other hand, those employers who self-represented were considerably less likely to be paying out more than $5,000 than those represented at hearing by professionals, whether lawyers or not. The explanation for this pattern is not clear, but one suspects that it has less to do with the contributions (or non-contributions) of the representatives than with other explanatory factors. Employers, for example, may logically be less inclined to self-represent on cases likely to result in larger awards. Or there might well be a correlation between self-representation and ability to pay, one of the considerations in compensation awards. And there are no doubt a range of other reasonable explanations.
Perhaps what this curious pattern points to most is that simple correlations between variables, while sometimes interesting to observe and speculate about, don't usually tell us anything definitive about causal relationships. So while any of these variables - the nature of the grievance, applicant occupation, respondent industry, geographical location, or the nature of representation - can be shown to correlate with adjudication outcomes, that does not necessarily establish a causality. Variables can have more than a chance or random relationship without having a direct causal relationship. A more sophisticated regression analysis allows for some tighter speculation regarding which factors are causing adjudication outcomes, or at least contributing to them. It is safe to assume that, by a very wide margin, the major determinants of adjudication outcomes are the merits of the case. But of course those are largely locked in place by the time representation becomes an issue.
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