Representation in UK Employment Tribunals: Analysis of the 2003 and 2008 Survey of Employment Tribunal Applications (SETA)
| Date | 01 March 2014 |
| Published date | 01 March 2014 |
| DOI | http://doi.org/10.1111/j.1467-8543.2012.00914.x |
| Author | Peter Urwin,Franz Buscha,Paul L. Latreille |
Representation in UK Employment
Tribunals: Analysis of the 2003 and 2008
Survey of Employment Tribunal
Applications (SETA)
Peter Urwin, Franz Buscha and Paul L. Latreille
Abstract
The perception is that formal representation is increasingly common in UK
Employment Tribunals (ETs), as case volumes and complexity increase. We
investigate the nature of representation in UK ETs using the 2003 and 2008
Survey of Employment Tribunal Applications (SETA). The results suggest
that between 2003 and 2008, the extent of formal claimant representation
declined. The majority of employers and claimants are either heavily repre-
sented or have little/no representation, and there is little evidence that claimant
representation is a response to employer representation at least at the level of
individual claims. Overall, however, it would seem that some of the ‘accessible,
informal and inexpensive’ characteristics envisaged by Donovan continue to
apply only to cases within certain jurisdictions.
1. Introduction
UK Employment Tribunals (ETs) are judicial bodies adjudicating on
employment-related disputes between employers and employees (or potential
employees). They deal with a range of grievances (or ‘jurisdictions’), includ-
ing unfair dismissal, breach of contract, unlawful deductions from wages,
redundancy payments and discrimination. A record 236,100 applications
were accepted during 2009–2010, with much of the 56 per cent increase on the
previous year being driven by claims involving multiple claimants, although
those involving single claimants also rose by 14 per cent (Tribunals Service
2010).
Peter Urwin and Franz Buscha are at the University of Westminster. Paul L. Latreille is at the
University of Sheffield.
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British Journal of Industrial Relations doi: 10.1111/j.1467-8543.2012.00914.x
52:1 March 2014 0007–1080 pp. 158–184
© John Wiley & Sons Ltd/London School of Economics 2013. Published by John Wiley & Sons Ltd,
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Such a large volume of claims has moved ETs far from their origins
as industrial tribunals designed to be ‘easily accessible, informal, speedy
and inexpensive’ (Donovan Commission 1968, para. 572). At the time of
Donovan, the intention was that tribunals would retain these four charac-
teristics, even though the report recommended extending their authority to a
wider range of disputes (MacMillan 1999). The increase in the range of
jurisdictions is generally seen as one of the major factors driving the long-
term increase in case numbers (Latreille 2007), together with the phenom-
enon of ‘individualisation’ identified by some observers, with collective
disputes supplanted by individual manifestations of conflict (see, for
example, Brown et al. 2000; Drinkwater and Ingram 2005; Urwin et al.
2007). Rising case volumes have fuelled concerns over the ‘speed’ of the
system (see, for instance, Department for Constitutional Affairs White Paper,
2004), but there is also a perception that the process has become increasingly
complex, with formal (often legal) representation increasingly common, chal-
lenging the characteristics of the process envisaged by Donovan.
The issue of ‘legalism’ in tribunals has been the subject of some debate
(Hepple 1986; Leslie 1985; MacMillan 1999; Munday 1981). As an employ-
ment practitioner was quoted as saying in Knight and Latreille (2001: 818)
‘Tribunals are popularly believed to be non-legalistic, non-bureaucratic and
suitable for lay-people to use, whereas in fact the opposite is nearer the truth’.
Thus, allied with a burgeoning number of jurisdictions and the increasing
legal complexity of claims, including the impact of European law (MacMillan
1999), parties have increasingly availed themselves of (legal) advice and
representation over the past two decades (Colling 2006; Fox and Dix 2002;
Hayward et al. 2004), although concerns have earlier antecedents (Munday
1981). This may be symptomatic of ‘the pathology of what Kagan (2001) has
referred to in the US context as “adversarial legalism” ’ (Adler 2006: 964),
akin to an ‘arms race’ in which parties are increasingly unwilling to risk
ceding any advantage by being less well represented than the other.
Certainly the authorities are aware of this issue, with representation of
claimants (but not employers) reported in the Tribunals Service (TS) annual
statistical release from 2007–2008 onwards. As data from this source sug-
gests,1the majority of claimants appear to be formally represented. In the
2009–2010 financial year for example, 69 per cent of claimants were reported
as having lawyers (including solicitors, law centres and trade associations)
representing them at ETs, and 5 per cent some form of trade union represen-
tation. However, there is variation from year to year in the percentages
attributable to different categories, with for instance, the proportion having
lawyers representing them being 57 per cent in 2008–2009.
To our knowledge, there has been no systematic, published research inves-
tigating the nature of representation in UK ETs using the Survey of Employ-
ment Tribunal Applications (SETAs), something we aim to rectify. Section 2
begins with a brief outline of the ET process and then provides detail of the
data used. Section 3 describes how levels of representation change between
the 2003 and 2008 SETAs and then describes various characteristics of
Representation in UK Employment Tribunals 159
© John Wiley & Sons Ltd/London School of Economics 2013.
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