Employment tribunal judges in the UK are responsible for resolving disputes between employers and employees. The system was designed to provide a forum for individuals and organisations to settle their disagreements without the need for a formal court setting.
Back in the 1960s that is exactly what an Industrial Tribunal was, associated with the Industrial Training Act 1964, with claimants in front of a legally trained person without the need for a lawyer. This changed following the Employment Rights (Dispute Resolution) Act 1998, and renamed the Employment Tribunal (ET), along with legislation under the Employment Tribunals Act 1996, where there are many legal thresholds to meet to achieve a successful claim. Additionally, since 2017 all judgments are put online for all to see, including prospective employers.
Employment tribunal trauma
However, there is some evidence that not all cases heard under the new system are fairly judged. In addition, an ET is at times a court of no record: “There is no audio recording or a transcription taken, unless requested, but this is at the judge’s discretion and rarely granted, so there is no lawful mechanism to obtain a record.” Updated Presidential Guidance (November 2023) stated: “Where a recording has been made, it will constitute the record of proceedings. Where a recording has not been made, the employment judge’s notes will constitute the record of proceedings.”
The judge’s notes cannot not be obtained and many cannot afford the transcription costs, so nothing really has changed in the court of ‘no record’.
The BBC reported that several women had faced “bullying and sexist behaviour” from Judge Phillip Lancaster in ET hearings. When one complaint was made to a higher judge, Stuart Robinson, in 2022, it was held in abeyance until the complaint appeal was decided and this is still ongoing.
Equality and diversity consultant at Sellafield, Alison McDermott, one of the women who endured alleged abuse from Judge Lancaster, successfully won her appeal against awarded costs of £40,000 at her ET hearing. However, McDermott was ordered to pay Sellafield £5,000 by the higher judge Robertson for her unreasonable assertion that crucial metadata was tampered with by the acting barrister. It was found that the metadata had been produced by Sellafield staff on a home computer, breaching Sellafield security. This led to a criminal prosecution of Sellafield who were found guilty.
A judge in the case of Dr Usha Prasad covered up her public interest disclosures of an ‘avoidable death’ to enable her whistleblowing case to be thrown out. This enabled Epsom and St Helier University Health Trust to pursue Dr Prasad for costs of an astounding £150,000 plus VAT via the law firm Capsticks, despite support from the chair of the British Medical Association.
Dr Chris Day’s ‘Tribunal of the Absurd’ is shocking and perfectly illustrates how whistleblowers’ claims are being mishandled by judges at ET, with clear bias shown. His 10-year battle to get justice continues.
One claimant’s story
The claimant had waited two-and-a-half years to be heard in her employment tribunal. Her case cost in excess of £60,000. Having suffered excessively aggressive treatment from her employers after making protected disclosures (whistleblowing), she suffered further abuse in her employment tribunal, with bullying and intimidation from the judge, which left her severely traumatised.
The claimant states that it was obvious from the offset that the circumstances of her whistleblowing were clearly not understood by the judge and panellists and that her attempts to explain just exacerbated the situation. She states the judge shouted at her on numerous occasions, and displayed discourtesy, rudeness and impatience. He intervened excessively, did not remain impartial and unbiased, and showed favour with the respondent, which ultimately led her to abandon her case.
In this case the judge was issued with a formal warning but there is no redress for the claimant.
Stories of bullying behaviour, bias towards the respondents and staggering costs awards are common in these stories. The Guide to Judicial Conduct states that officeholders should be courteous, tolerant and respect the dignity of all. They should also ensure that their conduct maintains and enhances the confidence of the public, the legal profession and litigants, in their personal impartiality and that of the judiciary.
These cases clearly go against these guidelines and discourage whistleblowers from taking their cases to an ET.
Employment tribunal chaos
As stated in my previous article, ETs have faced issues with significant case backlogs and delays in resolving disputes. To clear the backlog, a recruitment strategy was implemented where, according to a report in The Times in 2021, no experience was necessary to be a judge in the “biggest simultaneous recruitment of judges for nearly 400 years, with appointees being hired at annual salaries of £113,000”.
The claims of the article were disputed by the legal sector, and an analysis by a policy commentator shows it’s a complicated issue. A letter to The Times from the Employment Lawyers Association also protests the accuracy of the article.
However, all of this does little to reassure whistleblowers speaking out in the public interest.
To add to the chaos, many claimants are taking to platforms to voice their concerns about the alleged corrupt process and misconduct of judges, and complaints have been submitted to the President of the Employment Tribunals without result. The contention is that the ET president has essentially been ‘marking his own homework’ or just simply ignoring their complaints.
The complaints process was handed over to the JCIO (Judicial Conduct Complaints Office) from 31 October 2023, following a consultation in 2022 on the transparency of ET procedures. This however does not alleviate the trauma and issues that many claimants are still going through with complaints made before this date.
Bullying on the inside
A newly set up Judicial Support Network (JSN) by a judge who was bullied made a submission in 2022 to the Equality and Human Rights Commission (EHRC) to investigate the regime of making judicial appointments in England and Wales, which stated it was “thoroughly unfair, arguably unlawful and institutionally discriminatory”. It also highlighted “bullying and detrimental treatment of judicial office holders who complained about any part of the judicial system”.
It is also worth noting that salaried judges considering leaving the profession rose from 30% in 2014 to nearly 45% in 2022, according to a 2022 UK Judicial Attitude Survey. 81% of them also felt undervalued by government. More concerning is that judges reported bullying, harassment or discrimination from colleagues at work. If this is happening within its own house, the balance of probability of it happening in employment tribunals, we say, is quite likely.
