Employment Judges!
by Philip
As you may be aware Tribunal Chairmen have changed titles, they are now known as Employment Judges, whether anything should be read into the change of titles is a moot point. One interpretation could be that Tribunal proceedings are now very similar to other legal proceedings and therefore the change of title reflects that similarity.
With the possible advent of the requirement to mediate before litigating employment disputes, Employment Judges may be less busy with humdrum cases that will be mediated, and more busy with meatier cases than cannot be mediated.
A case reported here illustrates the point of the similarity between the Tribunal system and the County Court, a claim of race discrimination was struck out at a PHR Stage (ie very early on) without a full hearing of the evidence. This would not have happened 10 years ago but is becoming more frequent as the Tribunal rules, recently introduced, allow for a greater flexing of judicial muscle. Weak cases will and do get thrown out early.
In this case, a job offer, conditional on satisfactory references, was withdrawn when a previous employer, a firm of solicitors as it happened, refused to give a reference. Clearly, or so the Judge hearing the PHR thought, there was no issue of discrimination as the condition of employment had not been met. No reference led to no job offer. There was absolutely no evidence that a white employee would have been treated any differently.
10 years ago this claim would have trundled along to a full hearing, costing everyone a vast amount of time and money, but with the same result.
Employers say that they are frustrated that weak cases aren’t being weeded out early, this case illustrates that the tide has turned, weak cases are being weeded out early, without a long and expensive process (and rightly so.)The key though is that only weak cases where the facts aren’t in dispute can be weeded out early.
Where the facts are in dispute, no one, including an Employment Judge,can determine whether a case is weak or not until all the evidence is heard and the factual disputes resolved.
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I have an anecdote to support this, although such a bitter one at the time that I wrote a web site about it.
A union lawyer who had no intention of reading any evidence asked me not to attend the pre hearing review. I don’t think he had been to one for a long time and was only going because of sympathy for my extreme case and previous complaints by other union members.
Come the day, the chair wasn’t having it. He told the lawyer that I must turn-up before any judgement could be made.
The sad bit is, the judge never told me what was going on or what was in my big bag of evidence. I had lever-arch files of the stuff, including minutes of the meeting where a director seemed to suggest to my boss that she had better do the dirty if she wanted her own job. None of this was read. I think the judge thought he was doing a favour by ruling that part of the claim was not out of time: he must have thought I looked honest. But I wasn’t there for the money but to nail the other side, and that rare opportunity was missed.
John Robertson said at February 1st, 2008 at 7:16 pm