The workers' court: The humble industrial tribunal is defining what is appropriate behaviour at work. Paul Routledge and Stephen Ward report

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The Independent Online
ONCE it was the divorce courts that provided us with our staple diet of scandal: men and women getting it wrong, usually sexually, in the home or at play.

But divorce lawreform robbed us of all that intimate tittle-tattle, and for a time prurience went unsatisfied. Then it was discovered that people can behave just as badly at work, and that there is a place where this bad behaviour is exposed and dissected in public. Virtually overnight the humble industrial tribunal, poor, dull relation of the justice system, was converted into the new theatre of sexual and social politics. Now barely a day goes by without some drama from these workers' courts appearing in our papers and on our television screens.

And everybody can enjoy it, for the world of work, unlike the bedrooms of the couples in the old divorce courts, is everybody's world. We know the workplace and its problems; here they are, writ large.

So last week brought us Samantha Phillips, the 'bimbo' broker who won pounds 18,000 but was branded foolish. And on the same day there was Monika Kocanek, a Roman Catholic teacher of religious education, whose poignant story was headlined 'Church 'told pregnant lover of priest to quit' '.

Both wer e stories of unfair dismissal coupled with sexual discrimination. A few weeks earlier, we watched and wondered at 'the wolf who cried sexual harassment'. This was Stephen Davies, a civil servant at the Child Support Agency whose bid to appear a hapless victim of female lust foundered amid gales of laughter at a tribunal hearing in Birmingham.

More seriously, when the Government was compelled by a European Court of Justice ruling to abolish the pounds 11,000 limit on sex and race discrimination awards last year, alarm bells began ringing at the Ministry of Defence as a backlog of unfair dismissal/sex discrimination cases began to yield results. First, pounds 17,000 for a woman army corporal, sacked when she became pregnant. Then the awards mounted rapidly, reaching pounds 180,000 in one case and threatening to cost the MoD pounds 100m overall.

Industrial tribunals have even made it into the television soaps. Des Barnes, the self-pitying Geordie in Coronation Street who hit his boss when he found him in bed with his girlfriend, the barmaid at the Rovers' Return, is now suing for unfair dismissal after losing his job at the bookies' shop.

From nowhere, the industrial tribunal has become important: it upsets the Treasury and worries Michael Portillo, the Secretary of State for Employment (see page one); it offers judgements in some of the thorniest and most controversial issues in everyday life; it points the direction of social evolution and it brings justice, or disappointment to people who become popular heroes and popular villians. In short, all human life is there.

How much can a boss swear at his employees? How far can the office lizard ogle his women colleagues? What are the boundaries of racial tolerance, as expressed through words and actions in the workplace? A code of permissible conduct at work is taking shape.

The list of cases that have made headlines is long: the delivery driver, sacked for using the word 'bastard' in front of customers, who won his claim for unfair dismissal after telling a tribunal in Southampton there was nothing wrong in using a word uttered by the Prime Minister about some of his colleagues.

Most famously, perhaps, Ulsterman Trevor McAuley was awarded pounds 6,000 in June by a tribunal in Derbyshire which agreed that he should not have to laugh along with 'persistent and continuous' Irish jibes from his workmates. The Commission for Racial Equality, which supported the skilled machinist in his fight to prove racial discrimination, said the case was a landmark, sending a message to employers that it was unacceptable to allow such a workplace culture to develop.

The decisions of the tribunals are not binding legal precedent, nor do they establish what is criminal behaviour. However, the steady accretion of values that they speak for is having an impact on personal behaviour. It has the force of example, and the sanction of fair dismissal for those who recklessly ignore it. Those who sniggered at Mr McAuley's case may now think twice before they talk about 'thick Paddies' on the factory floor.

Are such decisions a matter of political correctness, perhaps even a creeping form of institutionalised social control? Or are they merely the more sensational tip of a large, worthy and dull iceberg of workplace justice?

The figures suggest the latter. There has been an explosion of applications to tribunals since the depths of the recession in 1989-90, when 34,697 men and women sought to bring an action against their employer. Last year, the total was 71,661, this year it will top 81,000. It is rising inexorably, as new rights are added to old ones - often driven by European directives - and the Government is worried. The price tag of justice at work has risen to pounds 27m a year, and proposals for reform have just landed on Mr Portillo's desk. It is virtually certain that he will take steps to ensure that fewer cases actually go to a hearing and the possibility of compensation.

Not that tribunals are a prize-every-time machine. Of last year's record number of applicants, fewer than 26,000 made it to a hearing. The rest were settled (often with the help of Acas, the conciliation service) or withdrawn. Far and away the largest proportion of cases relate to unfair dismissal. Only a third of the cases are adjudicated, and only 14 per cent are successful.

In about half the successful cases, compensation is awarded. The median figure last year was pounds 2,773. Only 0.2 per cent of the 42,757 original applicants got their jobs back: one in 500, scarcely a gravy train for malcontents.

It is still too many for Michael Portillo. In his perspective, the industrial tribunals have outperformed Topsy. They had obscure beginnings in 1964, when they were set up to hear appeals by employers against training levies imposed by a Conservative government. In 1971, they were placed at the heart of labour law by the ill- fated Industrial Relations Act, which introduced the concept of unfair dismissal. They now hear more than 60 different types of claim, from the right to receive an itemised pay statement to the rights not be discriminated against on grounds of race or sex.

Initially, the tribunals were meant to be informal affairs. A qualified lawyer presides, assisted by two 'side-members', one from each side of industry. He (almost always a he) has the status and pay of a county court judge. It would be fair to say that this is not the most sought- after legal post. 'Some of the chairmen are bloody good,' said one lawyer with wide experience of tribunals. 'And some of them are those who will not make it to the senior bar, maybe not even to the county court. You are going to get the dregs of the English Bar.'

The money is not bad: the 84 full-time chairmen get pounds 54,000 a year; the 199 part-timers, a daily fee of pounds 246. The lay side-members receive pounds 119. They sit in 22 towns and cities throughout Britain.

The chairman (even the women chairs are called chairmen) and the side-men go through the aggrieved worker's application, and then question both him or her and the former employer. Most hearings are supposed to take only one day, and the verdict - with reasons - should be announced straight away. It all sounds too simple to be true, and it is.

TRIBUNALS tend to be stuck in unwanted, often unsuitable government buildings in incongruous places, for these institutions have none of the majesty of the courts. The tribunal at Woburn Place, near Euston Station in London is fairly typical. Outside it is a grimy brick inter-war office block squeezed in between down-at-heel hotels and car rental shops.

Inside, where many people might have expected the grandeur of a courtroom, they get a warren of rooms tucked off the narrow corridors of a building with the smell and feel of an institution somewhere between a dole office and a hospital. There are pale orange doors, grimy walls with bits of used chewing-gum attached. Everybody signs in on the ground floor, and gets an identical red badge with a big black cross scrawled on it.

There is a waiting-room for applicants and a separate one up the corridor for the respondents (employers). Generally, although less rigidly so than a decade ago, the men and women coming and going from the respondents' room wear suits and look well-off, and the applicants tend to look older, poorer, more downtrodden.

Last week, Lynn Armishaw, 35, an urban designer in a blue linen suit, was arguing that she had been made redundant by the London Docklands Development Corporation because she was on maternity leave. The chairman, Marjorie Don, more in hope than expectation, asked if there was any point in adjourning to try to settle out of court. Both sides thought not.

Richard Isham, a solicitor representing Ms Armishaw, said she had been unfairly selected for redundancy, and one of his arguments would be that it was on grounds of sex, so there might be no limit on compensation she could get. An alarmed Mrs Don said he wasn't to expect the sort of amount he might have read about in the newspapers. 'I'm not expecting pounds 190,000, but my client wants more than a nominal amount,' the solicitor explained.

'We have loud noises off, so please speak up,' Mrs Don boomed over the heavy rain. There is no usher, no court clerk, no shorthand-writer, not even a tape-recorder. The rules of evidence are pretty relaxed, and the chairman has to take it all down in long-hand.

Ms Armishaw lost her job because the London Docklands Development Corporation was getting smaller each year as its functions - to rejuvenate the area - came to an end. Staff were all given marks for various qualities by a manager, 'in accordance with redundancy management guidelines'. Maternity did not figure in these guidelines, and she had been given the equal lowest score. The corporation insisted it had been particularly sensitive to her condition, and had made sure the criteria were not unfairly weighted against her.

Proceedings ended abruptly at 4.45pm, with the first witness still on the stand. Four senior staff from the corporation had spent a day away from their desks for nothing. When the hearing resumes, in mid-November, they will give their evidence, and be cross-examined in turn, then Ms Armishaw will give her version.

The unresolved case of the redundant urban designer brings into sharp relief some of the failings of industrial tribunals. The applicant often appears alone, without representation. Legal aid is not available, though some get it through their trade union or a local Citizens Advice scheme. Employers usually turn up with an employment law specialist, and then complain about the cost of the hearing.

Despite the presumption of informality, applicants (particularly women) often feel intimidated. The panel is usually composed of men, middle-aged or older - women and ethnic minorities are under-represented. One veteran side-member nominated by the TUC who has heard cases in London for more than a decade said: 'The understanding of race issues is less than adequate. Members get very little training, and there is a tendency to accept stereotypical views about applicants who claim racial discrimination. There are very few black women. I assume there must be some, although I have never seen one. However, I did meet a woman tribunal member who professed knowledge in race relations 'because I have lived in Rhodesia'.

'Women are grossly under- represented, both among chairmen and among side-members. I always think that any woman who goes to a tribunal arguing sex discrimination must be slightly put off. There is a great deal of stereotypical attitudes, including among women members. By no means are all women members sympathetic to sex discrimination cases.'

The lifting of the compensation limit on sex and race discrimination has led to an increase in the number of cases, but these are still quite rare. Last year, 176 cases of sex discrimination succeeded, and 151 on grounds of race (127 and 69 respectively the previous year).

However, in the biggest area - unfair dismissals - experts say case law over the past two decades has built up to the point where tribunals have very little discretion in reaching a verdict. Joe O'Hara, national legal officer of the GMB general union, argues: 'We are in a period of transition. It is partly political and partly cultural. We are moving from industrial tribunals, with an 'industrial jury', towards employment courts, away from industrial consensus and an independent assessment of managerial prerogative towards strict legal rights.'

Tribunals now have to look at the 'range of reasonable responses' that a manager might invoke when faced with a problem at work. If managers work within these, their conduct will usually be judged fair. 'Really, it would be a pretty crass employer to get caught these days,' he said. But, by their own admission, there are still plenty of crass employers around, chiefly among the small businesses with fewer than 20 workers who make up 97 per cent of the private sector.

Stephen Alambritis, spokesman for the Federation of Small Businesses, concedes that the small employer 'does tend to fire first and then think about it'.

He really cannot afford to. Many cases - even the ones that fail - now get high-profile publicity that is possibly damaging and certainly embarrassing. Elaine Ward, the cook who upset a brigadier with her watery scrambled eggs and soggy steak-and-kidney pie served up at Dover Castle, may not have got any money out of her excursion to the local industrial tribunal. But she certainly got her own back. Her boss, Brigadier Vere Hayes, did not look very gallant telling the world that he would not even have accepted some of her dishes as 'mistakes from my wife, though that might sound pompous to say'.

To suggest further that her kitchen spat with his wife wasthe kind of insolence she would not have dared to use had he been there, and that 'I have the advantage over my wife because I am the head of the household and a man' simply exposed him to public ridicule.

Brigadier Hayes imagined that he won because the Ministry of Defence was saved from paying compensation to the hapless cook. In the long run, did he? Elaine Ward's nerve in taking him on will encourage others to do the same. Maybe this is what is really worrying Michael Portillo: the accumulation of changes, individually imperceptible, that is taking place. For all their shortcomings, and for all their theatrical qualities, industrial tribunals are becoming engines of social revolution, not least because they lay bare the reality of life in the workplace that was once a closed book.

(Photographs and graph omitted)

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