The proposed changes to Panel Composition in the ET and the EAT – a valuable cost saving exercise, or an erosion of justice?

Sir Keith Lindblom, Senior President of Tribunals has in recent weeks launched a consultation paper seeking views on the proposals to potentially change the composition of ETs and the EAT, with a view to removing, or further reducing the use of lay members in all but the most complex cases. But what effect, if any, would this change have on the administration of justice?

Employment Tribunals, created in 1964 (and known as Industrial Tribunals until 1998) were initially created to decide appeals against training levy assessments imposed on employers by Industrial Training Boards. Whilst ETs still hear some appeals against administrative decisions, in most respects ETs have changed beyond all recognition in the past 59 years. However, one key component of Employment Tribunals has been its composition; indeed, the use of a panel in both the ET and EAT is of great importance to us as employment lawyers.

The use of lay members, who assist the Employment Judge in the determination of legal issues, but who also provide a lay perspective to issues (when first established the idea was that one non-legal member would have a Trade Union background and the other have a business background) has traditionally given parties the appearance of fairness and access to justice. However, the requirement for a panel of three has been reduced over the years.

Employment judges have been sitting alone on case management discussions, most pre-hearing reviews, and claims relating to unlawful deductions, unpaid holiday pay and redundancy payments for many years. Since 2012 Employment Judges have also been able to sit alone in Unfair Dismissal cases. When this was announced, it was anticipated to save around £3 million per annum in lay members fees and other associated costs. Meanwhile when the EAT was first established, a panel was required for all cases. However, since 2013 the EAT has been composed of a judge sitting alone, with a discretion to sit with a panel. This discretion is only exercised in about 15% of cases.

Now 10 years on, that composition looks set to change yet again. Within the consultation paper, Sir Keith Lindblom, Senior President of Tribunals said that the aim is to create a ‘more efficient and consistent pattern of panel composition’. This would involve reductions in panel size where that is justifiable, and potentially scrapping the system of allowing judges to sit alone for certain types of cases and not for others.

Sir Lindblom is of the view that there no inherent unfairness in a hearing before an Employment Judge sitting alone; equally he appeared to reject any suggestion that a full panel was required for parties to feel that they were getting a fair hearing. He also said that including non-legal members on the panel can affect the length of time involved or extend the time taken to make a decision or judgment.

Listing hearings on dates convenient for three members of a panel is also more difficult than where a judge can sit alone (have we not all had a hearing where a panel member has had a holiday or an operation to work around, resulting in an unavoidable further delay in a part-heard case?). One should also bear in mind the fees of panel members; currently £200 per day in the ET and £350 per day in the EAT, plus expenses.

Sir Lindblom cited the use of panels in discrimination and whistleblowing cases as being ‘too broad’ given that such cases often succeed or fail on legal points which panel members may have little knowledge in. He deemed this a ‘wasteful use of hard-pressed resources’ and perhaps many of us cannot argue with his logic. But what about the other side of the coin; what are the advantages of panel members?

Sir Lindblom acknowledged that lay members are more likely to be female (56% compared to judges at 52%), come from ethnic minorities (18%, compared to judges at 12%) and be people with disabilities (11%, compared with judges at 6%). Removing them from hearings could reduce representation of these groups in the tribunal. Equality in the Tribunal is therefore potentially affected, bearing in mind that there is also a higher proportion of people from ethnic minorities among claimants in the ET than in the workforce as a whole.

There is also a sense amongst many lawyers that panel members bring a human touch to a hearing; claimants in particular can feel that their voice is being heard by a lay person rather than a lawyer. As the consultation paper points out, a non-legal member may be better placed to determine an issue such as whether an adjustment requested by a disabled employee was reasonable, than a judge.

Whilst the promotion of diversity in the judiciary is highlighted within the consultation paper as being one of the Senior President Tribunal (SPT’s) main strategic objectives, it also points out that ‘it would not be appropriate to pursue that objective by deploying judicial office holders to hear cases in which their expertise is not required’.

When changes were made to panels for unfair dismissal hearings back in 2012, there was concern that this might be seen to erode public confidence for those seeking to bring claims. However, the consultation paper makes clear that the data shows that these concerns were unfounded. There were 49.036 unfair dismissal claims in 2012/2013, which was slightly higher than in the preceding years.

It is therefore argued that trusting the discretion of judges to identify cases where the input of non-legal members would be useful seems to be the correct approach. The SPT therefore proposes that the EAT should remain and the ETs should become, tribunals where substantive decisions are taken by a judge alone by default, with a discretion for the judge to sit with two non-legal members.

There is a further proposal by the SPT that preliminary hearings (which currently have a discretion for a judge to sit with a panel), will have the discretion removed and will always be conducted by an employment judge sitting alone. Interestingly, there is also a proposal to introduce the possibility of a two-judge panel, to deal with particularly complex cases; a system that already exists in various chambers of the First-tier Tribunal.

The sense one feels from reading the consultation paper is that whilst there are compelling arguments on both sides, the changes that we have seen in the tribunals and EAT over the past decade or so are likely to continue and that the composition of tribunals will no doubt be changed further. But would this be the right decision? If you have views on the consultation paper, responses to the same have now been extended to 27 April 2023 and can be sent to SeniorPresidentTribunalsOffice@judiciary.uk