18 February 2013
The Importance of Non-Lawyers in the Employment Tribunal System
Employment Lawyer Ivor Adair explains how the age discrimination case of Mr Homer shows importance of non-lawyers in the tribunal system.
Some things that happen in the workplace are obscured, such as indirect age discrimination and some things are just obscure, such as arguments on indirect age discrimination and indeed some judgments. Not so, however, in a judgment which appears to be the likely end to the long running battle between Mr Homer and The Chief Constable of West Yorkshire Police.
Mr Homer won his age discrimination claim but what can we draw from this legal saga? A strong sense that wing members (the non-lawyer lay members of the employment tribunal who each have a vote equal to the Judge) are a vital component of an effective employment tribunal system.
Mr Homer worked as a legal adviser at a time when they either needed a law degree (he did not have one) or exceptional experience plus a lesser qualification (which he did have). Some years later, a requirement to obtain a law degree was introduced in order to benefit from an increase in salary - and while Mr Homer could obtain a degree, the earliest he could complete it would be the year after he would be compulsorily retired!
So he was experiencing hidden discrimination as people in his age group (60 to 65) were disadvantaged. If not justified this would be unlawful.
But was it age or impending retirement that meant he was disadvantaged? Last year the Supreme Court rejected the notion it was not age, pointing out retirement is inextricably linked with age and sent the case back to the tribunal to decide if the discrimination was justified.
The Chief Constable’s attempts to justify this treatment were rejected by the employment tribunal in a victory for common sense, and in a judgment which underscores the importance and value of lay members in work discrimination claims.
The police gave evidence that to offer different terms to new starters and existing staff would be fraught with problems. The lay members in particular, were not impressed with this evidence and considered these problems "overstated". In deciding the age discrimination was not justified the lay members drew on their considerable industrial and work experience.
Few employment Judges will have managed a large department or represented members in a grinding collective bargaining process and therefore be able to make the same value judgment as to what is just too difficult to do or what is practicable, as a lay member can.
With Judges now to sit alone in unfair dismissal claims, one wonders how new lay members are ever going to get the experience necessary to grapple with complex workplace discrimination claims, without first cutting their teeth in unfair dismissal claims.
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