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Enforcing rights in employment tribunals: insights from age discrimination claims in a new ‘dataset’

Published online by Cambridge University Press:  25 March 2021

Alysia Blackham Open the ORCID record for Alysia Blackham [Opens in a new window]
Alysia Blackham*
Affiliation:
Melbourne Law School, University of Melbourne, Australia
*
*Author email: [email protected]
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Abstract

The online publication of employment tribunal (ET) decisions in England, Wales and Scotland marks a watershed moment, opening up new innovative avenues for legal research, and promoting transparency in labour law decision-making. Drawing on this ‘dataset’, and using age discrimination decisions as a lens to facilitate analysis, this paper reflects on the advantages and limitations of using online ET decisions as a data source to support labour law research. By considering matters of time in age discrimination decisions – both in relation to time limits for bringing a claim, and ET delays – this paper uses innovative empirical findings to map the limits of the individual enforcement model adopted by discrimination laws, and illustrates some of the barriers to successfully bringing a claim for discrimination.

Keywords

labour lawequality lawemployment tribunalsage discriminationindividual enforcementUnited Kingdom
Type
Research Article
Information
Legal Studies , Volume 41 , Issue 3 , September 2021 , pp. 390 - 409
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press

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Footnotes

†

This research was funded by the Australian Government through the Australian Research Council's Discovery Projects funding scheme (project DE170100228). The views expressed herein are those of the author and are not necessarily those of the Australian Government or Australian Research Council.

References

1 GOV.UK, Employment Tribunal Decisions https://www.gov.uk/employment-tribunal-decisions.

2 This paper typically refers to the UK as a whole, though the differences between the regimes in England and Wales, Scotland and Northern Ireland are referenced as appropriate.

3 Dickens, L ‘The road is long: thirty years of equality legislation in Britain’ (2007) 45(3) British Journal of Industrial Relations 463 at 475CrossRefGoogle Scholar.

4 Enterprise and Regulatory Reform Act 2013, s 7; The Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014, SI 2014/254. Notification was not compulsory prior to 2014. Early conciliation was introduced in NI from 27 January 2020: The Industrial Tribunals and Fair Employment Tribunal (Early Conciliation: Exemptions and Rules of Procedure) Regulations (Northern Ireland) 2020, SI 2020/2.

5 Cf eg the limited age discrimination case law in the courts: Blackham, A ‘Age discrimination beyond employment’ (2019) 52(1) Kobe University Law Review 1Google Scholar.

6 See eg Nielsen, LB and Nelson, RL ‘Scaling the pyramid: a sociolegal model of employment discrimination litigation’ in Nielsen, LB and Nelson, RL (eds) Handbook of Employment Discrimination Research: Rights and Realities (Springer, 2005) p 3CrossRefGoogle Scholar.

7 See eg Barnard, C and Ludlow, A ‘Enforcement of employment rights by EU-8 migrant workers in employment tribunals’ (2016) 45(1) Industrial Law Journal 1CrossRefGoogle Scholar.

8 BIALL How Do I? Wiki/Employment Tribunal Cases (9 February 2017) BIALL http://biallpr.pbworks.com/w/page/5259170/Employment%20Tribunal%20cases.

9 Ibid.

10 Northern Ireland Industrial Tribunals and Fair Employment Tribunals, Decisions Search (28 September 2006) https://employmenttribunalsni.co.uk/OITFET_IWS/DecisionSearch.aspx.

11 Lockwood, G et al. ‘A quantitative and qualitative analysis of sexual harassment claims 1995–2005’ (2011) 42(1) Industrial Relations Journal 86Google Scholar; see also Rosenthal, P and Budjanovcanin, A ‘Sexual harassment judgments by British employment tribunals 1995–2005: implications for claimants and their advocates’ (2011) 49(S2) British Journal of Industrial Relations s236CrossRefGoogle Scholar.

12 Lockwood et al, above n 11, at 88.

13 Ibid.

14 LD Irving, Challenging Ageism in Employment: An Analysis of the Implementation of Age Discrimination Legislation in England and Wales (Coventry University, 2012) p 71 https://curve.coventry.ac.uk/open/file/ffc88163-6994-4400-bead-121298f52bd1/1/Irving%202012.pdf.

15 Ibid, p 76.

16 Somewhat ironically, some of Irving's results tables are not available in the online version of the PhD thesis, but must be inspected in hard copy at Coventry University.

17 Irving, above n 14, p 86.

18 Barnard and Ludlow, above n 7.

19 Ibid, at 3.

20 Ibid, at 6.

21 Ibid.

22 Ibid, at 8.

23 Ibid, at 7, 10.

24 Ibid, at 10.

25 Ibid, at 3.

26 In Australia, see Blackham, A ‘Why do employment age discrimination cases fail? An analysis of Australian case law’ (2020) 42(1) Sydney Law Review 1Google Scholar; Blackham, A and Temple, J ‘Intersectional discrimination in Australia: an empirical critique of the legal framework’ (2020) 43(3) UNSW Law Journal 773Google Scholar; in the USA, see Schuster, M and Miller, CS ‘An empirical assessment of the Age Discrimination in Employment Act’ (1984) 38(1) ILR Review 64CrossRefGoogle Scholar.

27 J Anderson ‘Employment tribunal judgments online’ (10 February 2017) Jamie Anderson http://www.jamieandersonbarrister.co.uk/updates/uncategorised/employment-tribunal-judgments-online/; Jamie Anderson ‘Employment tribunal judgments Online (revisited)’ (1 July 2020) Jamie Anderson http://www.jamieandersonbarrister.co.uk/updates/uncategorised/employment-tribunal-judgments-online-revisited/.

28 See similarly Allen, D and Blackham, A ‘Under wraps: secrecy, confidentiality and the enforcement of equality law in Australia and the UK’ (2019) 43(2) Melbourne University Law Review 384Google Scholar.

29 See similarly ibid; ‘Employment tribunal decisions go online’ Osborne Clarke https://www.osborneclarke.com/insights/employment-tribunal-decisions-go-online/.

30 Women and Equalities Committee ‘Enforcing the Equality Act: the law and the role of the Equality and Human Rights Commission’ (Tenth Report of Session 2017-19 HC 1470, 30 July 2019) 86, 55, 192 https://publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/1470/1470.pdf.

31 Ibid, at 60, 217.

32 Blackham, A and Allen, D ‘Resolving discrimination claims outside the courts: alternative dispute resolution in Australia and the United Kingdom’ (2019) 31 Australian Journal of Labour Law 253Google Scholar. See also Women and Equalities Committee ‘The use of non-disclosure agreements in discrimination cases’ (Ninth Report of Session 2017-19 HC 1720, 11 June 2019) 70.

33 Allen and Blackham, above n 28.

34 Thornton, M ‘The public/private dichotomy: gendered and discriminatory’ (1991) 18(4) Journal of Law and Society 448 at 457CrossRefGoogle Scholar; Thornton, M ‘Equivocations of conciliation: the resolution of discrimination complaints in Australia’ (1989) 52(6) The Modern Law Review 733 at 735CrossRefGoogle Scholar.

35 ‘Online tribunal decision database, and anonymity orders’ Stammeringlaw (19 November 2019) https://www.stammeringlaw.org.uk/employment/resolving-employment-disputes/online-tribunal-decision-database-anonymity-orders/. See the claimant's unsuccessful argument to this effect in Kirkham v United Kingdom Research and Innovation [2019] UKET 2501482/2018. In that case an anonymity order was refused.

36 Anderson ‘Employment tribunal judgments online’, above n 27.

37 [2019] UKEAT/0302/18/RN.

38 Ibid, at [11].

39 See Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, SI 2013/1237, Sch 1, r 50.

40 Anderson ‘Employment tribunal judgments Online (revisited)’, above n 27.

41 Ibid.

42 Anderson ‘Employment tribunal judgments Online’, above n 27.

43 Bengtsson, L ‘Addressing age stereotyping against older workers in employment: the CJEU and UK approach’ (2020) 62(1) International Journal of Law and Management 67CrossRefGoogle Scholar.

44 Ibid, at 69.

45 Author's analysis of the case sample: see ibid, at 89–91.

46 For further details of this project, and other outputs, see https://www.ageworks.info.

47 On ADR as another part of this puzzle see Blackham and Allen, above n 32.

48 Webley, L ‘Qualitative approaches to empirical legal research’ in Cane, P and Kritzer, HM (eds) The Oxford Handbook of Empirical Legal Research (Oxford: Oxford University Press, 2010) pp 926, 941Google Scholar.

49 See Hoecke, M van ‘Legal doctrine: which method(s) for what kind of discipline?’ in van Hoecke, M (ed) Methodologies of Legal Research: What Kind of Method for What Kind of Discipline? (Oxford: Hart Publishing, 2011) pp 1, 11–17Google Scholar.

50 Hall, MA and Wright, RF ‘Systematic content analysis of judicial opinions’ (2008) 96(1) California Law Review 63 at 66Google Scholar.

51 Ibid, at 76.

52 See eg F Kort ‘Predicting Supreme Court decisions mathematically: a quantitative analysis of the “right to counsel” cases’ (1957) 51(1) The American Political Science Review 1. Kort used quantitative analysis to predict claim outcomes (‘jurimetrics’).

53 Hall and Wright, above n 50.

54 Feild, HS and Holley, WH ‘The relationship of performance appraisal system characteristics to verdicts in selected employment discrimination cases’ (1982) 25(2) Academy of Management Journal 392Google Scholar.

55 Schuster and Miller, above n 26.

56 Irving, above n 14.

57 Blackham, above n 26.

58 Ibid.

59 GOV.UK, above n 1. Some decisions handed down earlier than February 2017 had been uploaded to the website, dating back to 14 July 2016. While certainly not comprehensive for this period, these decisions were included for the purposes of this analysis, adding four decisions to the sample which were decided prior to February 2017.

60 The code is available from the author upon request.

61 Sharpe v Plympton Academy [2017] UKET 1400688/2017; Tarbuck v Peninsula Business Services Ltd [2019] UKET 2404056/2014.

62 Dixon v NHS Digital [2017] UKET 1801127/2017.

63 Colquhoun v Glasgow City Council [2017] UKET S/4104871/2017.

64 Ryan, GW and Bernard, HR ‘Data management and analysis methods’ in Denzin, NK and Lincoln, YS (eds) Collecting and Interpreting Qualitative Materials (Sage, 2nd edn, 2003) pp 259, 275–276Google Scholar.

65 Further details of these methods and results are on file with the author and available on request.

66 Cf Judge Eady QC in Ameyaw v Pricewaterhousecoopers Services Ltd [2019] UKEAT 0244_18_0401 (4 January 2019) para [49].

67 Where the claimant's age was expressed as an age range (eg 60+, under 35), this was analysed as the specified age (eg 60, 35 respectively). This is a blunt tool, which is why the median age is used for this analysis, not the mean. This analysis does not necessarily accurately capture the age of multiple claimants to a claim. Where multiple claimants were involved in a decision, the lead claimant's age was used for analysis. Typically, though, multiple claimants fell within a similar age range.

68 This is consistent with Irving's findings: in her study, of 620 folio reports which specified whether claimants were too old, too young or belonged to a disadvantaged age group, 6.8% (42) were too young, 91.1% (565) were too old and 2.1% (13) belonged to a disadvantaged age group: Irving, above n 14, p 90.

69 There was no explicit recognition in the titles of claimants who were gender diverse. This could therefore not be included in the analysis.

70 Though, for some cases, the full gender breakdown was not possible to discern; this was analysed as one male claimant, and one female claimant, though the actual numbers will be higher: eg Jenkins v Tesco Stores Ltd [2018] UKET 3401288/2016, which was coded as 1,1; McCloud v The Lord Chancellor [2017] UKET 2201483/2015, also coded as 1,1.

71 [2019] UKET 2201663/2018.

72 [2017] UKET 2202235/2015.

73 Lord Chancellor v McCloud [2018] EWCA Civ 2844, [2019] WLR(D) 1.

74 Heskett v The Secretary of State for Justice [2019] UKEAT/0149/18/DA.

75 Lord Chancellor v McCloud, above n 73.

76 One of these cases involved a claimant who was classified as both too old and too young (where a young person also associated with an older colleague).

77 These numbers do not add to 43 given the multiple claimants in Sargeant v London Fire and Emergency Planning Authority [2017] UKET 2202235/2015 and McCloud v The Lord Chancellor [2017] UKET 2201483/2015.

78 In one case a default judgment was later revoked.

79 Irving, above n 14.

80 Blackham, above n 26; Schuster and Miller, above n 26.

81 Equality Act 2010, s 140B. See similarly The Employment Equality (Age) Regulations (Northern Ireland) 2006, SI 2006/261, reg 48(1).

82 Equality Act 2010, s 123(3).

83 Ibid, s 118.

84 [2000] OJ L303/16.

85 Case C-246/09 Bulicke v Deutsche Büro Service GmbH, 2010.

86 Ibid, at [24].

87 Ibid, at [25].

88 Lord Donovan (Chair) ‘Royal Commission on Trade Unions and Employers’ Associations’ (Cmnd 3623, June 1968) 156 [572]. See also Law Commission ‘Employment Law Hearing Structures: Report’ (HC308; Law Com No 390, 2020) p 14; Corby, S ‘British employment tribunals: from the side-lines to centre stage’ (2015) 56(2) Labor History 161, at 165CrossRefGoogle Scholar.

89 Law Commission, above n 88, p 22.

90 Ibid, p 15.

91 Hepple, BA Equality: The Legal Framework (Hart Publishing, 2nd edn, 2014) p 206Google Scholar.

92 Sex Discrimination Act 1975, s 76.

93 Industrial Relations Act 1971, re-enacted in the Trade Union and Labour Relations Act 1974, Sch 1, para 21(4).

94 International Labour Recommendation 119 Termination of Employment Recommendation, 1963 (No 119) cl 4, 11(4).

95 Lord Donovan (Chair), above n 88, 147 [546].

96 Industrial Relations Act 1971, re-enacted in the Trade Union and Labour Relations Act 1974, Sch 1, para 21(4).

97 Corby, above n 88, at 173.

98 Dickens, above n 3, at 478.

99 Law Commission, above n 88, p 14.

100 Ibid.

101 Council of Employment Judges submission, quoted in ibid 19.

102 ‘Delays at employment tribunal reach 8 months – up 14% last year’ (HR News 29 July 2019) http://hrnews.co.uk/delays-at-employment-tribunal-reach-8-months-up-14-last-year/.

103 K Makortoff ‘Employment tribunal claims taking eight months to be heard’ (The Guardian, 29 July 2019) https://www.theguardian.com/money/2019/jul/29/employment-tribunal-claims-taking-eight-months-to-be-heard.

104 R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51.

105 Makortoff, above n 103.

106 M Newman ‘Labour pains’ (27 July 2020) Law Society Gazette https://www.lawgazette.co.uk/features/labour-pains/5105139.article.

107 Employment Tribunals England & Wales ‘41st Meeting of National User Group: Minutes of the National User Group Meeting Held Via Zoom on 30 June 2020’ (2020) 6 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/907738/ET_NUG_June_2020_minutes.pdf.

108 Ibid.

109 Ibid.

110 Ibid; Management Information Her Majesty's Court and Tribunal Service, 11 March 2021, Table 7.

111 Ibid.

112 [2017] UKET 2414119/2012.

113 Ibid., at [2].

114 Ibid., at [2].

115 [2018] UKET 2500035/2017.

116 [2017] UKET 2302841/2015.

117 Law Commission, above n 88, p 14.

118 Ibid., p 22.

119 Ibid., p 15.

120 Felstiner, WLF et al. ‘The emergence and transformation of disputes: naming, blaming, claiming …’ (1980) 15(3/4) Law & Society Review 631CrossRefGoogle Scholar.

121 National Association of Schoolmasters Union of Women Teachers submission, quoted in Law Commission, above n 88, p 19.

122 LawWork submission, quoted in ibid.

123 See eg X v Y [2019] UKEAT/0302/18/RN, discussed above.

124 Law Commission, above n 88, p 23.

125 Harman v TMD Technologies Ltd [2017] UKET 3324348/2016; Kisitu v Inclusive Care Support Ltd [2019] UKET 3200241/2018 (claim successful); Kurianczyk v Integrated Cleaning Management Ltd [2019] UKET 2601254/2018 (later withdrawn); Morar v Thera Trust [2018] UKET 2600973/2018 (lawyer failed to submit claim properly; rectified within a few days); Craig v The Commissioners for HMRC [2019] UKET 2501090/2017; Gibson v Newcastle upon Tyne Hospitals NHS Foundation Trust [2018] UKET 2500035/2017; Featherstone v Flair Flooring Supplies Ltd [2018] UKET 2424154/2017 (later withdrawn); Morgan v Yeovil District Hospital NHS Foundation Trust [2018] UKET 2423686/2017 (struck out due to failure to pay deposit); Nugent v Bucks Deli Ltd [2016] UKET 2400815/2016; Rose v Caterham School Ltd [2018] UKET 2304178/2017; Sandifer v HML Shaw Ltd [2017] UKET 2302143/2016; Balogun v Thorlands Housing Management Society [2017] UKET 2300909/2016; Cherian v Well Rose Ltd [2017] UKET 2300855/2017; Shirin v Wilson Barca LLP [2019] UKET 2208035/2016; Walsh v Government Legal Department [2019] UKET 2206970/2017; Stephenson v The Secretary of State for Justice [2017] UKET 1802719/2015; Winschief v SRS Realisations 2017 Ltd (in administration) [2019] UKET 1402539/2018; Ballentine v The Board of Governors, Lismore Comprehensive School [2019] NIIT 00051/18IT; 01014/17IT; 02819/16IT.

126 See eg Waterloo v National Library of Scotland [2019] UKET S/4105348/17 (held to not be out of time, but dismissed on merits); Wilson v Wilson Devonald Griffiths John Ltd [2017] UKET 1600416/2016 (held that actions placed claimant on gardening leave, and he was not dismissed; time therefore did not start to run, and claim was not out of time).

127 Brown v Kingspan Timber Solutions Ltd [2018] UKET 3325687/2017 (decline to decide; Tribunal to determine whether out of time); Basra v Flogas Britain Ltd [2018] UKET 2601057/2017 (to be determined whether time should be extended, later withdrawn).

128 Gibson v Newcastle upon Tyne Hospitals NHS Foundation Trust [2018] UKET 2500035/2017; Amu v Department for Work and Pensions [2018] UKET 1600465/2017; Roberts v Voodoo Doll Ltd [2018] UKET 2403330/2017; Craig v The Commissioners for HMRC [2019] UKET 2501090/2017.

129 This reflects the juridification of ETs and the rules they apply: Corby, above n 88.

130 [2019] UKET 4103815/2018.

131 Ibid, at [31].

132 Ibid, at [32].

133 Ibid, at [36]–[37].

134 Ibid, at [42].

135 Ibid, at [44].

136 Law Commission, above n 88, p 18.

137 Ibid.

138 Sanderson v Boehringer Ingelheim UK [2018] UKET 2501398/2017; Chatten v Sky Subscribers Services Ltd [2018] UKET 2501396/2018 [28]; Gillespie v Santander UK PLC [2018] NIIT 05232/18IT.

139 [2018] UKET 2501396/2018, at [14].

140 Ibid, at [14].

141 Ibid, at [28].

142 [2018] NIIT 05232/18IT.

143 Ibid, at [52].

144 Ibid, at [59], [65].

145 Ibid. at [16]–[38].

146 Ibid, at [38].

147 [2018] NIIT 04119/17IT; 04120/17IT.

148 Ibid, at [72].

149 [2017] NIIT 00924/15IT.

150 Ibid, at [3].

151 Ibid, at [3].

152 Law Commission, above n 88, p 21.

153 See eg Grant, D ‘Older women, work and the impact of discrimination’ in Sargeant, M Age Discrimination and Diversity: Multiple Discrimination from an Age Perspective (Cambridge: Cambridge University Press, 2011) p 41Google Scholar; Handy, J and Davy, D ‘Gendered ageism: older women's experiences of employment agency practices’ (2007) 45(1) Asia Pacific Journal of Human Resources 85Google Scholar; Moore, S ‘“No matter what I did I would still end up in the same position” age as a factor defining older women's experience of labour market participation’ (2009) 23(4) Work, Employment & Society 655CrossRefGoogle Scholar.

154 See also Barnard and Ludlow, above n 7.

155 R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51, at [68].

156 Ibid, at [71].

157 Ibid, at [78].

158 Ibid, at [89].

159 Sturm, S ‘Second generation employment discrimination: a structural approach’ (2001) 101(3) Columbia Law Review 458CrossRefGoogle Scholar.

160 See generally the contributions to Dickens, L (ed) Making Employment Rights Effective: Issues of Enforcement and Compliance (Oxford: Hart Publishing, 2012)Google Scholar.