RESEARCH REPORT: ADJUDICATION IN THE EMPLOYMENT TRIBUNAL
| Volume 25 Number 3 | October 2000 |
|
RESEARCH REPORT: ADJUDICATION IN THE EMPLOYMENT TRIBUNAL
|
|
How parties fare in the Tribunal is always of interest to both practitioners and scholars. To explore this, I will, for clarity of analysis and presentation, limit the sample to just the substantive personal grievance decisions issued by the Tribunal in the years 1992 through 1999 inclusive. Those decisions - again just on the primary grievance claim in each application - number 3,217.
As I noted in the corresponding piece last year, in the adjudication of a personal grievance claim, and perhaps particularly in the case 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 or disadvantaging the employee was one that was justifiable in all the circumstances. A party can, then, "win" a personal grievance case without necessarily wholly winning the case. Cases where a successful grievant's remedies are reduced for contributory misconduct would be an obvious example. So a "win" in a personal grievance case may be a matter of degree rather than a matter of absolutes.
For the purpose of our analysis, a successful outcome for the employee - a "win" - consists of a decision by the Tribunal that the employee has a personal grievance. Defined in these terms, Table Two shows the success rate for personal grievants for the years 1992 through 1999 inclusive.
| Grievance Outcomes | Frequency | Percent |
| Grievant Won |
1978
|
61.5
|
| Grievant Lost |
1239 |
38.5 |
| TOTAL |
3217 |
100.0 |
What is of interest here, and evident by contrasting Table Three, reproduced from the corresponding paper in 1999, is the decline in the success rate of personal grievants.
| Grievance Outcomes | Frequency | Percent |
| Grievant Won |
1420
|
64.3
|
| Grievant Lost |
788 |
35.7 |
| TOTAL |
2208 |
100.0 |
Again, I will return to this theme of declining success rates for grievants or applicants in due course, particularly in relation to claims surrounding dismissals for misconduct, where the trend seems quite marked.
In an adjudication case where the applicant has been successful to the extent of a finding that he or she has a personal grievance, then remedies are likely to follow.
The available remedies, depending on circumstances, are reinstatement of the applicant to a job, reimbursement of lost remuneration, compensation for loss of tangible benefits, and compensation for humiliation, loss of dignity and injury to feelings. The outcome of a case can be measured in terms of any or all of these remedies, in addition to being measured on the straight "win- lose" dimension represented by Tables Two and Three.
| Level of Compensation | Frequency | Percent |
| No Compensation Awarded |
318
|
16.1
|
| Up to $5000 |
1147 |
58.0 |
| Between $5000 and $10000 |
398 |
20.1 |
| Over $10000 |
115 |
5.8 |
| TOTAL |
1978 |
100.0 |
Of the available remedies, compensation for humiliation, loss of dignity and injury to feelings is, at least in some respects, the most useful measure of decision outcomes, both because it is almost universally sought by grievants and it is arguably the remedy over which the Tribunal has the greatest discretion.
Table Four shows the distribution of compensation awards under this head to grievants successful in winning their cases in adjudication in the years 1992 through 1999. The major movement from the data published last year for decisions issued from 1992 through 1997 was an increase in the percentage of successful grievants awarded no compensation from 12.6 percent for the period to 1997 up to the 16.1 percent figure when 1998 and 1999 decisions are added.
|