RESEARCH REPORT: ADJUDICATION IN THE EMPLOYMENT TRIBUNAL
| Volume 25 Number 3 | October 2000 |
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RESEARCH REPORT: ADJUDICATION IN THE EMPLOYMENT TRIBUNAL
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The sense that applicants are doing less well as time goes by is confirmed by looking at the percentages of adjudication decisions of all types won by applicants over the years: 69.7 percent in 1992, 63.9 percent in 1993, up a bit to 66.5 percent in 1994, but thereafter a gradual but consistent slide: to 59.7 percent in 1995, then 58.7 percent in 1996, 56.9 percent in 1997, 55.1 percent in 1998, and finally 54.0 percent in 1999. Interestingly, figures for 2000 indicate a reversal in this trend, although the entries in the database for this year are obviously yet to be completed.
The extent of the decline over time naturally raises the question why it is happening. I am not yet in a position to give any real answers to that question, but it is interesting to examine the phenomenon in a little more detail.
Last year’s report looked at factors that appeared to be statistically associated with personal grievance outcomes – personal grievances being the largest part of the Tribunal’s caseload – and found that the variable that was the best predictor of the win – lose outcome was the nature of the grievance. So, in looking for more detailed trends, that would seem to be the place to start. Table Five shows grievance outcomes by type of grievance for the years 1992 - 1997, borrowed from last year’s paper, set alongside the same figures but with the numbers for 1998 and 1999 incorporated, so 1992 - 1999.
| 1992-1997 | 1992-1999 | |||
| Type of Personal Grievance | Win | Lose | Win | Lose |
| Dismissal:
Count
Constructive Dismissal Percent |
174
(46.8%) |
198
(53.2%) |
232
(46.4%) |
268
(53.6%) |
| Dismissal:
Count
Misconduct Percent |
416
(63.5%) |
239
(36.5%) |
511
(60.1%) |
340
(39.9%) |
| Dismissal:
Count
Poor Performance Percent |
303
(83.0%) |
62
(17.0%) |
373
(81.4%) |
85
(18.6%) |
| Dismissal:
Count
Redundancy Percent |
302
(71.4%) |
121
(28.6%) |
408
(69.5%) |
179
(30.5%) |
| Dismissal:
Count
Other Percent |
168
(61.8%) |
104
(38.2%) |
281
(62.4%) |
169
(37.5%) |
| Other Personal Grievance
Count
Percent |
57
(47.1%) |
64
(52.9%) |
84
(49.7%) |
87
(50.3%) |
What is apparent on the face of Table Five is that the success rate for grievance applicants has declined with the addition of the 1998 and 1999 case decisions in each of the three major dismissal case categories that come before the Tribunal - dismissals for misconduct, dismissals for poor performance, and dismissals for redundancy. Of these, the most marked decline with the addition of case decisions for the last two complete years is in the category of dismissals for misconduct, which is also the largest category in terms of numbers of dismissals, as it has been throughout the life of the Tribunal. Against a base of over 400 case decisions for applicants in the period through 1997, an overall decline in the success rate of almost 3.5 percentage points over an additional two years is quite significant.
For completeness, Table Six sets out the distribution of compensation awards for successful grievants for the full period 1992 through 1999. The addition of case data for 1998 and 1999 causes no marked changes in the patterns that were reported last year through 1997, and so the discussion of compensation won’t be taken any further in this report.
Table Six: Compensation for 'Humiliation, Loss of Dignity,
and Injury to Feelings' by Type of Grievance, 1992-1999
| Level of Compensation | |||||
| Type of Personal Grievance | None | Up to $5000 | $5001 -$10000 | Over $10000 | |
| Dismissal:
Count
Constructive Dismissal Percent |
35
(15.1%) |
127
(54.7%) |
57
(24.6%) |
13
(5.6%) |
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| Dismissal:
Count
Misconduct Percent |
68
(13.3%) |
307
(60.1%) |
105
(20.5%) |
31
(6.1%) |
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| Dismissal:
Count
Poor Performance Percent |
34
(9.2%) |
244
(65.0%) |
78
(20.9%) |
17
(4.6%) |
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| Dismissal:
Count
Redundancy Percent |
43
(10.5%) |
243
(9.0%) |
96
(23.5%) |
26
(6.4%) |
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| Dismissal:
Count
Other Percent |
37
(13.2%) |
178
(63.3%) |
52
(18.5%) |
14
(5.0%) |
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| Other Personal Grievance Count
Percent |
14
(16.7%) |
46
(54.8%) |
10
(11.9%) |
14
(16.7%) |
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