WHY LEGISLATION HAS FAILED TO PROVIDE EMPLOYMENT PROTECTION: A NOTE
| Author | Moira Hart,Brian Weeks,Michael Jones,Linda Dickens |
| Published date | 01 July 1982 |
| Date | 01 July 1982 |
| DOI | http://doi.org/10.1111/j.1467-8543.1982.tb00102.x |
WHY LEGISLATION HAS FAILED TO PROVlDE EMPLOYMENT
PROTECTION:
A
NOTE
LINDA DICKENS, MOIRA HART, MICHAEL
JONES
AND
BRIAN
WEEKS*
IN
the November 1981 issue
of
this journal Paul Lewis addressed a question which we
too have been researching
-
why
so
few unfairly dismissed workers obtain
re-employment via the statutory machinery. However our findings differ in one major
respect from his and consequently we differ in our analysis
of
why
so
little
re-employment is being achieved. This note explores these differences.
Lewis uses ‘unpublished
DE
statistics’ to show that 71 per cent
of
applicants who
won their cases had requested re-employment at the time they applied to industrial
tribunals. From his own postal survey he found that 29
of
his 139 respondents,
21
per
cent, wanted re-employment at the time
of
their, successful, hearings. He does not
appear to have asked his respondents what remedy they sought at the time of
application but compares the
DE
statistics with his findings. The large drop in the
proportion wanting re-employment which this comparison shows leads him to argue
that the explanation for the low level
of
re-employment awarded by tribunals
lies
in
the delay between application and hearing which gives rise to this change in choice. He
argues that tribunals in fact award re-employment to most
of
those who want it at the
hearing.
We conducted a random, national interview survey
of
over
1000
applicants whose
unfair dismissal claims were registered between October 1976 and September 1977.
Twenty-three per cent
of
applicants who won their cases at tribunal (and
24
per cent of
all applicants) stated on their application forms that they wanted re-employment.’ We
are led, therefore, to query the
71
per cent figure used by Lewis. The applicants we
surveyed do not generally support Lewis’ contention that the time period between
application and hearing is too long. Seventy per cent of cases were heard within twelve
weeks
of
application, 39 per cent within eight weeks. The majority
of
applicants,
58
per cent, thought the time period was ‘about right’.
Lewis argues that it
is
‘the administrative delay, a feature
of
the Tribunal system
itself‘ which leads applicants who start off wanting re-employment to switch to cash
compensation. He argues that they change their minds about wanting their jobs back
when they hear what the employer says about them, realising that the employment
relationship has broken down;
or
that they no longer want this remedy because they
find new jobs before the hearing
or
realise that the old job no longer exists. The extent
to which this is
so
can be questioned. Firstly, the minority in our survey, 39 per cent,
who considered the time between application and hearing ‘too long’ did not attribute
this to the breakdown
of
the employment relationship and reduced likelihood of
return, but gave other reasons concerning the difficulty in recalling events. the strain
and desire to get the matter over with, and the continuing
loss
of
money. Secondly,
our findings show that over half the applicants coming to hearing were still
unemployed. Further, re-employment is still possible even where the old job no longer
exists since the term encompasses re-engagement (return to different job) and because
reinstatement
is
not automatically rendered impracticable by the employment
of
a
replacement, under
EPCA
s.70.
But even if the factors Lewis suggests were influential in deterring people from
re-employment, they would not apply with the same force at the conciliation stage
*
SSRC Industrial Relations Research Unit, University
of
Warwick
257
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