the role of lay members in employment rights cases – survey

The role of lay members in employment rights cases – survey evidence

Professor Susan Corby (University of Greenwich)

Professor Paul L Latreille (Swansea University)

November 2011

i

Contents Acknowledgements ................................................................................................................................ iii

Background/context ............................................................................................................................... 1

Research methodology ........................................................................................................................... 2

Questionnaire design and sample .................................................................................................. 2

Survey administration ..................................................................................................................... 2

Response rates ................................................................................................................................ 3

Results - ET .............................................................................................................................................. 5

Characteristics of respondents ....................................................................................................... 5

Sitting alone/with lay members ...................................................................................................... 8

Contributions of lay members ........................................................................................................ 9

Majority decisions ......................................................................................................................... 17

Views on lay members .................................................................................................................. 17

Workplace experience .................................................................................................................. 19

Alternative roles for lay members ................................................................................................ 19

Enhancing the role of lay members .............................................................................................. 20

Results – Comparing ET findings in England and Wales with Scotland ................................................ 22

Characteristics of respondents ..................................................................................................... 22

Sitting alone/with lay members .................................................................................................... 24

Contributions of lay members ...................................................................................................... 24

Majority decisions and influence .................................................................................................. 28





Results – EAT ......................................................................................................................................... 31

Characteristics of respondents ..................................................................................................... 31

Sitting alone/with lay members .................................................................................................... 31

Contributions of lay members ...................................................................................................... 32

Majority decisions ......................................................................................................................... 37




ii


Conclusions ........................................................................................................................................... 40

References ............................................................................................................................................ 42

iii

Acknowledgements Thanks are extended to the individuals interviewed during the preliminary phase of questionnaire

design, and to members of the project Advisory Group for their invaluable guidance and insights in

the further development of the survey instruments and comments on earlier drafts of this report.

We are also grateful to Dianne Fairhurst at the Judicial Office and to Julia Johnson and Billy

Threadwell at the Employment Appeal Tribunal for their considerable efforts in addressing and

mailing the questionnaires and reminders on our behalf. Finally, particular thanks are offered to the

many judges and lay members who generously gave their time to complete the survey. Any errors or

omissions are of course, ours alone.

1

Background/context This report documents findings from a survey of all Employment Tribunal (ET) lay members and

judges, and is part of a larger project funded by the Economic and Social Research Council (Grant No.

RES-000-22-4154) exploring the role and contribution of lay members in the employment setting.

The research is set against the background of a piecemeal reduction in the use of lay members in

both the ET and Employment Appeal Tribunal (EAT), and crucially at a time when the Department for

Business, Innovation and Skills is reviewing various arrangements at ET/EAT – including the role of

lay members – following the Resolving Workplace Disputes consultation which closed on 20 April

2011.

The wider project uses a mixed methods approach, with a combination of in-depth interviews

administrative data analysis and desk-based research, alongside the survey. The last provides

important information from the two key decision-making actors within the system, namely lay

members and judges. Preliminary findings from the survey based only on questionnaires returned by

the initial closing dates (see below) were released previously given their potential to inform the

Government’s thinking in terms of legislative reforms in relation to lay members as part of the

consultation which closed just before the survey deadline. The current document updates these

findings using all responses received. Findings are qualitatively unaffected. As before, it should be

noted that the responses of the former group of respondents may be conditioned by the perceived

threat to their role occasioned by certain proposals in the consultation, with the potential that they

may be tempted to emphasise their role relative to judges1. Of course this is not the only reason why

differences may be evident between the accounts of judges and lay members. For example, it may

simply reflect differences of perception between the two sets of decision-makers reflecting their

own perspectives, something that has elsewhere been termed ‘self-serving bias’ (see for example,

Babcock and Loewenstein, 1997). A slightly more subtle ‘experiential’ version of this thesis is that

individual lay members may base their assessment of contribution largely on how they perceive their

own input, something that is potentially subject to biases such as ‘illusory superiority’ or the ‘above

average effect’ (see Hoorens, 1993). Judges on the other hand, will sit with a range of lay members,

so will base their views on some average of those lay members with whom they have sat2.

1 Interestingly, it has been suggested that the converse may not apply following the recent regrading of

Employment Judges consequent on the recommendations of the Judicial Salaries Review Body (Review Body on Senior Salaries, 2011). 2 To the extent that fee-paid judges might sit with a relatively small sub-set of lay members in any given year,

this may give rise to a recency problem in that views are formed primarily by more recent experiences.

2

Research methodology

Questionnaire design and sample

The research sought to elicit the views of all ET and EAT judges and lay members (i.e. a census rather

than a sample). Separate questionnaires, albeit with a number of common/overlapping questions

were designed for each of these groups via a sequential process. Initial variants were developed by

the researchers following, and on the basis of, a set of preliminary in-depth interviews with key

stakeholders with experience of the ET system, including lay members and judges as well as users of

the system. This enabled identification of key themes and perceptions for the survey to explore.

Initial versions of the survey instruments were circulated to the project’s Advisory Group, and

following a lengthy initial meeting, an extensive period of consultation with members of this group

then followed, during which extensive modifications were made. Final versions of the ET

questionnaires ran to 40 questions with those for the EAT being slightly shorter, and were structured

around sections on background, judges sitting alone, lay members and their contributions to the

hearing and decision-making processes, the number of occasions on which majority decisions and

minority opinions had been recorded, possible changes to the role of lay members and to the system

itself, and finally a set of short set of demographic questions (gender, age and ethnicity).

A small-scale pilot to each of the target groups was undertaken as a form of cognitive testing3, and

further, minor modifications made on the basis of feedback received prior to the questionnaires

going into the field.

Survey administration

As noted above, the intention was to send questionnaires to each of the 424 ET judges, 20 EAT

judges, 1783 ET lay members and 53 EAT lay members. Following discussions with the Senior

President’s office and the Judicial Office about distribution, it was agreed that the questionnaires be

administered as hard copy by post by the Judicial Office and the EAT as appropriate. A key issue was

the desire for methodological reasons to include identification numbers on the questionnaires so as

to preclude the potential for duplication and to facilitate the issuing of reminders. Accordingly, while

ensuring participant confidentiality and Data Protection compliance, questionnaires were printed

and marked with a unique identification number at Greenwich and placed in envelopes with the

same identification number on the outside and containing a covering letter and stamped addressed

return envelope. These ‘packs’ were sent to the Judicial Office and the EAT who undertook the task

of recording the identification numbers against individual judge and lay member names and

addresses on their respective databases, and addressing envelopes for onward distribution. A key

feature of this process was that the researchers, while having access to the reference numbers and

thus being able to identify non-responses and notify these to the Judicial Office/EAT, would not be

able to match them to names or addresses; the Judicial Office and EAT in contrast, would be able to

identify individuals from the identification number for the purpose of sending out reminders, but

would not have sight of the completed questionnaires which were returned directly to the

researchers.

3 This included 2 judges and 2 lay members in Scotland, and 3 judges and 4 lay members in Manchester and

Liverpool region facilitated by Shona Simon (ET President Scotland) and Brian Doyle (Regional ET Judge Manchester and Liverpool) respectively.

3

Unfortunately, while the reminder process worked without difficulty for the EAT, an IT problem at

the Judicial Office resulted in the Excel spreadsheet matching individual identification numbers and

respondent addresses being damaged; it was not possible to restore this file and consequently,

following consultation with the Advisory Group, a general reminder was issued to ET lay members

and judges after the initial deadline had passed, asking individuals to complete the previously

circulated questionnaire and offering them the opportunity to obtain a replacement from the

Judicial Office on request.

Questionnaires were distributed in mid-March for the ET and a week or so later for the EAT, with the

initial deadlines set as 31 March for ET judges and lay members and 5 April for the EAT. All returns

received by these dates were entered into SPSS for preliminary analysis and early release of the

findings in light of Government interest in same. Returns received after this date and in response to

the reminders were subsequently uploaded. Corresponding statistical analysis of the full set of

returns is the subject of the current report.

Response rates

The findings here are based on all completed returns received. The population sizes and number of

responses and response rates in total, and as at the initial deadlines are set out in Table 1 below:

Table 1: Population sizes, number of responses and response rates as at initial deadlines

Target group Population

size

Responses (initial

deadline)

Response rate (%) (initial

deadline)

Responses (final)

Response rate (%) (final)

Employment Tribunal:

Judges 424 144 33.9 191 45.0 Lay members 1783 926 51.9 1143 64.1

EAT: Judges 20 12 60.0 16 80.0 Lay members 53 27 50.9 39 73.6

As this indicates, even at the initial deadline, response rates were eminently respectable, exceeding

50% for three of the four groups. This likely reflects the strong interest in the issues addressed by

the survey in light of the Government’s Resolving Workplace Disputes consultation that, as noted

above, included significant reforms to the role of lay members both at the ET and EAT4 and was

contemporaneous with the survey (closing 20 April 2011).

It is important to emphasise that the findings at the present stage of the research are based only on

responses to numerical questions; subsequent work will examine text-based questions and the many

4 Proposals specifically affecting the role of lay members on which views were sought included direct measures

such as extending the range of jurisdictions where judges can sit alone at the ET to unfair dismissal, and removing “the general requirement for tripartite panels [altogether] in the EAT, allowing more efficient use of lay member resource” (BIS, 2011: 6). Indirect measures include witness statements being taken as read in all hearings.

4

comments and annotations that were provided by respondents. Findings are presented first for the

ET, followed by those for the EAT.

In the case of the latter, underlying populations are much smaller (20 judges and 53 lay members).

Thus, even with the very respectable response rates documented above of 80 per cent and 74 per

cent respectively, which engender some confidence in the representativeness of the results, the

numbers of observations recorded are relatively small. Given the smaller numbers of responses, the

analysis of EAT data is accordingly briefer as the number of observations either precludes or renders

unnecessary tabulation/graphing of results, with key findings set out instead in discursive/text form.

In interpreting the results below, note that with the exception of Tables 2 and 14, all results exclude

item non responses, but include “Don’t know” or “Can’t remember” where these were among the

options provided. A small number of questions asked respondents to rank items; several of those

completing the questionnaires did so inappropriately (for example using the same number more

than once or ticking, not ranking, options) and these are not included in the reported figures (or the

bases on which they are calculated). In the tables, percentages above zero but below 0.5 are

indicated using “>0”.

Finally, because Scotland has a different administration and some variations in procedure and

practice (for example, and inter alia, Scotland has its own President, issues its own practice

directions, and in relation to procedure, witness statements are in general not used), it was

considered there might be value in undertaking separate analysis looking at the views of ET judges

and lay members in England and Wales compared with their counterparts north of the border (but

not, by design, the EAT due to the small population size). This comparative exercise is presented as a

separate sub-section. It should be noted that a corollary of analysing the Scottish data separately is

that the number of respondents there, both lay members and judges, is by definition more modest,

but especially so for the latter (n=138 and n=19 respectively), so that confidence in the precision of

some results is accordingly lower than for the aggregate findings, and in particular when considering

conditional responses, where the samples fall even further.

5

Results - ET

Characteristics of respondents

As Table 2 shows, Employment Judges are predominantly male (63 per cent of respondents), with

the most common (modal) age category being 60-64 (median 55-59). As a group they are almost

exclusively white, with just 8 respondents (4 per cent) from black or minority ethnic (BME) groups.

While lay members exhibit greater gender parity (55 per cent male), they too are typically older,

with the modal age group being 60-64, and more than a fifth aged 65 or over5,6. 6 per cent of lay

members are from BME groups7. As might be expected given the size of the underlying target

populations, most of those responding to the survey are based in England and Wales, with 10 per

cent of judges (19 respondents) and 12 per cent of lay members (138 respondents) from Scotland.

In terms of judges’ current status, just under three fifths of those responding were fee paid. Among

those currently appointed on this basis, the average number of years experience in that capacity was

8.8 years (n=113), while among those from this group who had previously served in a salaried

capacity, the mean was 13.3 years (n=16). All bar one of the 74 currently salaried judges had fee paid

experience, with mean experience levels in fee paid and salaried roles being 5.4 and 8.4 years

respectively8. Combining the data, total service ranged from a year or less among newly appointed

judges to more than 30 years, the data thus representing a broad range of experience.

For lay members, slightly more than half (53 per cent) of those responding were appointed to the

employers’ panel. The mean period of service was 11.2 years, with the shortest tenure being just

one year, the longest approaching 40 years. Just over three fifths (61 per cent) had been appointed

on the basis of open competition. Some 83 per cent had had workplace experience (broadly defined

to include as an employer, employee, worker, consultant, volunteer or trade union

official/representative) in the previous 12 months. Among those who did not, the mean length of

time since members had had such experience was 5.4 years (median 5 years), with a small number

(n=22) not having had such experience for 10 or more years. Responses to a question on how long

lay members should continue to serve once their experience ceases to be current are considered

below.

5 For comparison, the figures for employees in Great Britain in the nationally representative Labour Force

Survey are 51 per cent male, a median and modal age group of 35-44 years (with just 2 per cent aged 65 or over), with 9 per cent from BME groups (Peters et al., 2010). Unfortunately at the time of writing the Judicial Office cannot provide us with data enabling us to compare our respondents’ characteristics (e.g. gender, ethnicity) with those of all ET judges and lay members. 6 Recruitment campaigns since 1999 have “aimed to improve representation to match the diversity of the UK

working population and claimants” (DTI/NRG Group, undated). 7 Aston et al. (2006) conducted research into the experience of claimants in race discrimination cases. Several

of the 40 claimants whom they interviewed commented on the ethnicity of the panel and doubted the capacity of an all white panel to be sympathetic about racism and its manifestations. 8 Mean and median figures are similar both for judges’ tenure and for lay members.

6

Table 2: Respondent characteristics

Variable Frequency (%)

Judges Lay Members

Sex Male 63 55 Female 36 44 Missing data 1 1 Age Under 40 4 2 40-44 7 4 45-49 14 9 50-54 18 14 55-59 15 18 60-64 21 30 65 or over 17 22 Prefer not to say 2 1 Missing data 1 1 Ethnic group White – British 86 88 White – other 6 4 BME 4 6 Prefer not to say 3 1 Missing data 1 1 Location England and Wales 90 88 Scotland 10 12 Missing data 1 >0 Current status (judges only) Fee paid 61 Salaried 39 Missing data 1 Panel Employer 53 Employee 47 - Appointment method (lay members only) By nomination 38 Through open competition 61 Both >0 Other >0 Missing >0 Base: 191 1143

7

Perceived changes to lay member expertise/profile

Judges were asked their views on how the expertise/profile of lay members had changed. Figure 1

documents the results, based on the 160 or so who responded9. For ease of interpretation, the

graphic is centred on the ‘Same’ category so that the extent to which the bars appear either side of

the centre axis indicates in the broadest terms, the direction of change. As is evident, judges appear

to be substantially of the view that lay members are increasingly aware of diversity issues, and also

that they have more knowledge of employment law. While the majority (58 per cent) consider that

possession of analytical skills has not changed, on balance, these are regarded as an increasing

characteristic. However, there appears to be something of a trade-off with these positive facets in

that there is also a broad perception that lay members have less direct workplace experience.

Perhaps somewhat surprisingly given the move to selection under ‘Nolan principles’ and the

emphasis on increased representation among minority groups, judges do not appear to support the

view that lay members are drawn from a broader cross-section of society, although of course it is

possible that their perceptions may be erroneous10. Note also that these perceived changes are set

in an institutional context in which the stock of members is refreshed only periodically.

The most recent recruitment exercise took place in 2009-10, resulting in 341 new appointments –

see Tribunals Service (2010) for a description of the process and characteristics of applicants

proceeding through the various stages of selection11.

Figure 1: Perceived changes to lay member expertise/profile – judges

Notes: Bases are 163, 164, 163 and 164 respectively.

9 The question included an option for individuals to declare that they had insufficient experience to be able to

say, with 21 (14.6 per cent) selecting this option. These are excluded from the calculations. 10

For example, Knight and Latreille (2001) note that around the time of the 1992 Survey of Industrial Tribunal Applications, some 77 per cent of lay members were male, compared with 55 per cent here. 11

Among the 341 applicants recommended for appointment, 52 per cent were male and 8 per cent were from BME groups, suggesting that in relation to these demographics, the profile of lay members increasingly mirrors the wider working population, although the data here suggests (for reasons which may relate to availability and the accumulation of experience), possibly not in relation to age.

1

5

41

34

6

23

41

51

40

58

76

54

8

26

36

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100

Awareness of diversity issues

Knowledge of employment law

Direct workplace experience

Drawn from cross-section of society

Possession of analytical skills

Less Same More

8

Sitting alone/with lay members

Judges were asked on how many occasions in the last 12 months they had sat with lay members in a

Pre-Hearing Review (PHR), the normal practice being to sit alone. As Table 3 shows, around 40 per

cent had sat with members on one or more occasions, although fewer than 10 per cent had done so

more than twice.

In relation to Hearings (clarified in the survey as “a hearing to determine outstanding issues or to

dispose of the proceedings, but not a CMD, PHR, interim relief hearing or review hearing”), judges

were asked how many times in the last 12 months they had sat with lay members instead of

adopting the (default) position of sitting alone. As Table 3 again reveals, a substantial number

(slightly fewer than half) reported so sitting, but most had done so on only a small number of

occasions. However, around one in seven had done so on 6 or more occasions.

Those who had sat with lay members contrary to the default position were asked to rank the

reasons for doing so. Most (35) indicated that the likelihood of a dispute arising on the facts was the

main reason for choosing to do so, with a further nine saying this was the second most important

factor12. The views of any of the parties and proceedings which might be heard concurrently were

much less frequently reported as the most important factor (seven and eight respectively).

Table 3: Sitting with lay members at PHRs and Hearings – judges


Number of times sat with lay members at PHR None 60 1-2 32 3-5 6 6 or more 2 Base: 191 Number of times sat with lay members at Hearing contrary to default position

None 52 1-2 24 3-5 4 6 or more 16 Can’t remember 2 Base: 189

Both judges and lay members were asked to assess the appropriateness of the present criteria

distinguishing cases where judges can sit alone and those where they have to sit with members in

respect of PHRs and Hearings. As can be seen, most judges felt the current basis was completely or

broadly appropriate both for PHRs and Hearings, although the level of approbation is somewhat

12

Note that the sample size here is smaller due to missing responses (some ranked only one factor) and inappropriate responses (n=14), typically ticking one or two rather than ranking 1, 2, etc. This seems to have been an issue on several such questions, particularly among the lay member responses.

9

higher for the former. Lay members are less inclined to view the basis for PHRs as ‘Completely

appropriate’, instead seeing the division as ‘Broadly appropriate’, but the sum of the two almost

identical for the two groups. In contrast, lay members are less likely to see the basis for Hearings as

‘Broadly appropriate’ and markedly more likely to see the basis for Hearings as ‘Not at all

appropriate’.

Table 4: Assessment of appropriateness of present criteria for sitting with/without lay members


Judges Lay members

PHRs Completely appropriate 36 21 Broadly appropriate 49 66 Not very appropriate 10 11 Not at all appropriate 4 2 Don’t know - >0 Base: 187 1081 Hearings Completely appropriate 20 17 Broadly appropriate 58 46 Not very appropriate 19 21 Not at all appropriate 3 16 Don’t know - >0 Base: 186 1082

Contributions of lay members

In assessing lay members’ contributions, the research sought to separate those which arose as a

consequence of the presence of lay members, and those from their activities. The former is reported

in Table 5. As can be seen, for judges, lay members’ most important contribution is seen as providing

general workplace experience, followed by giving parties confidence from the fact decisions are

reached by three persons rather than one individual, and ensuring a balance between legal and

workplace perspectives. The last of these is the main contribution lay members perceive for

themselves. Strikingly, they are more than twice as likely as judges to see their presence as helping

to ensure fairness at the hearing, although neither group sees a strong role for lay members in terms

of guarding against allegations of judicial bias/the misconducting of hearings.

Lay members’ contributions in respect of their activities are set out in Tables 6a and 6b. Among

judges (Table 6a), the most important role for lay members in terms of their activity, is to provide a

non-legal perspective, followed by acting as the eyes and ears of the judge; they are seen as much

less significant in terms of identifying issues for exploration during and especially before hearings

(possibly reflecting that claims may have been case managed to the point where the issues are

already identified and/or that ET lay members do not see papers generally until the day of the

Hearing). In contrast, while many lay members also see their contribution in terms of providing a

non-legal perspective (Table 6b), a far higher percentage of this group see their most important

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contribution as identifying issues during hearings, and only a tiny percentage see their most

important role as acting as the eyes and ears of the judge (3 per cent compared with 33 per cent of

judges).

Table 5: Contributions from presence of lay members in ETs

Contributions (in judges’ rank order) Frequency (%)

Judges Lay members

Provide general workplace experience 74 66 Give parties greater confidence as a result of the decision being that of three persons rather than of a single person

58 57

Ensure a balance between the legal perspective and employer/worker perspectives

58 76

Reassure parties that their perspective or situation will be understood 42 40 Provide specific industry expertise 25 7 Help to ensure the hearing is fair 19 42 Reduce the risk of a judge sitting alone being wrongly accused of bias 13 8 Reduce the risk of a judge sitting alone being wrongly accused of misconducting the hearing

11 3

Base: 190 1122 Notes: Respondents were allowed to choose up to three possible contributions. For lay members, 20 respondents ticked

more than three boxes and are excluded.

Table 6a: Ranking of lay member activity contributions in hearing process in its entirety – judges

Contributions Rank frequency (%)

1 2 3 4 5 6

Identify areas/issues for exploration before hearings 3 9 14 12 31 28 Identify areas/issues for further exploration during hearings

17 27 18 22 10 4

Act as the eyes and ears of the judge 33 25 19 16 5 2 Take notes 3 13 27 23 23 11 Help to ensure unrepresented parties understand technical terms

1 3 5 17 21 49

Provide a non-legal perspective 43 24 17 8 6 2 Notes: Base is 180 respondents. Row percentages sum to less than 100% where a number of respondents ranked fewer

than 6 items. 9 responses were invalid (e.g. ticks rather than ranks) and are excluded from both the analysis and base.

11

Table 6b: Ranking of lay member activity contributions in hearing process in its entirety – lay

members


1 2 3 4 5 6

Identify areas/issues for exploration before hearings 10 19 24 14 15 15 Identify areas/issues for further exploration during hearings

38 39 14 5 2 1

Act as the eyes and ears of the judge 3 12 20 26 24 13 Take notes 1 5 13 26 25 27 Help to ensure unrepresented parties understand technical terms

2 5 12 18 24 37

Provide a non-legal perspective 46 20 16 8 6 3 Notes: Base is 1046 respondents. Percentages sum to less than 100% where a number of respondents ranked fewer than 6

items. 85 responses were invalid (e.g. ticks rather than ranks) and are excluded from both the analysis and base.

Both groups were also asked to assess the overall contribution they felt lay members made to the

hearing process. The results are shown in Table 7. Perhaps unsurprisingly, lay members perceive

their contribution to be much greater than judges, with 61 per cent reporting the highest score

compared with 17 per cent of judges. The mean score among judges is 2.36, with a mode and

median of 2, while lay members’ mean score is 1.50, and with both mode and median equal to 1 (the

highest score).

Table 7: Lay members’ perceived overall contribution to hearing process

Scale Frequency (%)

Judges Lay members

1 17 61 2 41 31 3 31 4 4 11 4 Base: 188 1111 Notes: Scaling is from 1 (most) to 4 (least).

Tables 8a and 8b next report the responses among the two groups to a question about the

frequency with which lay members contribute to various facets of the decision-making process. As

Table 8a shows, judges see lay members’ contributions as being most frequent in relation to

assessing the evidence and/or finding the facts, followed by bringing workplace

knowledge/expertise, although a substantial percentage also said lay members ‘Sometimes’ spotted

important points that might otherwise have been missed and tested judges’ assumptions/reasoning.

Lay members also saw their most frequent contributions to decision-making in relation to assessing

evidence/finding facts and bringing workplace knowledge/expertise, but were far more likely than

judges to say they did so ‘Often’, something that was also true of the other items (half for example

said they ‘Often’ made judges articulate their reasoning, compared with 18 per cent of judges who

reported this). Strikingly, whereas 9 per cent of judges thought lay members ‘Often’ spotted points

that might otherwise be missed, 41 per cent of lay members did so, and more than 90 per cent of lay

members thought this was true ‘Often’ or ‘Sometimes’. This may not however, be entirely

unsurprising, reflecting differences in how judges go about inviting lay member contributions. Judges

12

are for example, trained to allow lay members to play a full role in proceedings, but there is no

script, and consequently there is likely to be a variety of practice. (The questions underlying Tables

8a and 8b also provide an ‘Other’ option with free text providing further details; they await analysis.)

Table 8a: Frequency of lay member contribution to judges’ part in decision-making process –

judges

Contributions Frequency (%)

Often

Some- times

Rarely Never

Make judge articulate reasoning 18 41 34 7 Spot important points that would otherwise be missed 9 56 31 4 Assess the evidence and/or find the facts 50 36 11 3 Test judges’ assumptions and/or reasoning 20 57 19 4 Bring workplace knowledge/expertise 39 47 13 1 Notes: Base is 190 for each statement except for first and fourth statements where bases are 188 and 189 respectively.

Table 8b: Frequency of lay member contribution to judges’ part in decision-making process – lay

members


Often

Some- times

Rarely Never

Make judge articulate reasoning 50 41 9 >0 Spot important points that would otherwise be missed 41 56 3 >0 Assess the evidence and/or find the facts 81 18 1 >0 Test judges’ assumptions and/or reasoning 46 46 7 >0 Bring workplace knowledge/expertise 89 10 1 >0 Notes: Base is 1127, 1130, 1128, 1129 and 1128 respectively.

Tables 9a and 9b next assess the frequency with which the presence of lay members might delay

decision-making. As Table 9a shows, the most common cause of delay is seen by judges as arising

from the (unavoidable) need for discussion, although a substantial minority see each of the reasons

as arising at least ‘Sometimes’13. Again, the perceptions of the two groups are strikingly different: as

Table 9b shows, lay members consider their presence as delaying decision-making far less

commonly. For example, whereas almost two thirds of judges consider lay members ‘Often’ or

‘Sometimes’ ask irrelevant questions, just 16 per cent of lay members themselves hold the same

view. Two in five judges think lay members ‘Often’ or ‘Sometimes’ ask questions in an inappropriate

manner, but just 8 per cent of lay members think they do so.

13

Rescheduling delays may also sometimes be at the request of parties and attempts to accommodate same.

13

Table 9a: Frequency of lay member delay to decision-making process – judges

Reason Frequency (%)

Often

Some-times

Rarely Never

Extend time taken because discussion is necessary 43 44 13 1 Extend time where there is a need to reconvene in chambers 31 46 21 2 Extend time to consider draft judgments / reasons 13 34 46 7 Extend time where there is a need to reconvene in part-heard cases

26 43 24 7

Ask irrelevant questions 16 50 33 1 Ask questions in an inappropriate manner 5 36 53 6 Notes: Base is 190 for each statement except for second statement where base is 189.

Table 9b: Frequency of lay member delay to decision-making process – lay members


Often

Some-times

Rarely Never

Extend time taken because discussion is necessary 10 44 39 7 Extend time where there is a need to reconvene in chambers 2 29 55 14 Extend time to consider draft judgments / reasons 2 25 60 14 Extend time where there is a need to reconvene in part-heard cases

4 37 44 16

Ask irrelevant questions 1 15 63 21 Ask questions in an inappropriate manner 1 7 58 34 Notes: Bases are 1120, 1116, 1119, 1123, 1124 and 1123 respectively.

Table 10: Jurisdictions in which lay members add value to decision making

Jurisdiction Frequency (%)

Judges Lay members

Unfair dismissal 57 [80] 25 [100] Discrimination 64 [87] 24 [99] Equal Pay 23 [46] 15 [90] TUPE 14 [37] 16 [91] Breach of contract 5 [28] 17 [92] Collective redundancy/protective awards 10 [33] 14 [89] Other 1 2 Add value in all jurisdictions whether or not listed above 23 75 Do not add value in any jurisdiction 7 - Base: 189 1124 Notes: Multiple responses allowed. Percentages for specific jurisdictions do not include responses where ‘all jurisdictions’

was selected. Figures in [] are the sum of those agreeing lay members add value in a specific jurisdiction and those stating

they do so in all jurisdictions (not presented for ‘Other’ since choices vary). Two lay member respondents provided

inconsistent data and are excluded.

Table 10 above examines the issue of those jurisdictions in which lay members are perceived as

adding (particular) value. Confirming the above, the two groups again have differing views, with

three quarters (75 per cent) of lay members considering they add value in all jurisdictions, compared

14

with just over a fifth (23 per cent) of judges. None of the lay members considers they do not add

value in any jurisdiction, compared with 7 per cent of judges. Noteworthy in the context of the

Government’s proposed reforms in relation to judges sitting alone for unfair dismissal cases

however, is that those judges who identified specific jurisdictions where lay members add value

selected unfair dismissal behind only discrimination in terms of frequency. If one were to add the 22

per cent of judges who say lay members add value in all jurisdictions to figures for the specific listed

jurisdictions (presented in Table 10), 80 per cent consider lay members add value in the unfair

dismissal jurisdiction.

Figures 2a and 2b next show the perceived usefulness of lay members at various stages of the

decision-making process. Confirming the earlier results, lay members are seen by judges as being

much less important in relation to identifying the issues and, unsurprisingly, in applying legal

principles, but are considered to play a positive role in relation to assessing evidence, making

findings of fact and reaching a decision on both liability and remedy. Lay members in contrast, see

themselves as being useful across all stages, and are far more likely than judges to say they are ‘Very

useful’ as opposed to simply ‘Quite useful’.

Figure 2a: Usefulness of lay members in stages of decision-making process – judges

Notes: Bases are 187, 188, 189, 188, 190 and 190 respectively due to item non-responses and one respondent who

indicated a negative contribution for the first four items (excluded from the calculation of percentages).

26

43

41

22

45

46

2

44

45

1

34

34

60

11

12

55

19

16

13

2

2

22

1

4

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100

Identifying issues

Assessing evidence

Making findings of fact

Applying legal principles

Reaching a decision on liability

Reaching a decision on remedy

Quite useful Very useful Not very useful Not at all useful

27

43

39

25

44

46

2

45

48

1

35

33

58

9

11

53

21

16

13

3

2

22

1

5

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100

Identifying issues

Assessing evidence






27

43

39

25

44

46

2

45

48

1

35

33

58

9

11

53

21

16

13

3

2

22

1

5

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100

Identifying issues

Assessing evidence






27

43

39

25

44

46

2

45

48

1

35

33

58

9

11

53

21

16

13

3

2

22

1

5

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100

Identifying issues

Assessing evidence






27

43

39

25

44

46

2

45

48

1

35

33

58

9

11

53

21

16

13

3

2

22

1

5

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100

Identifying issues

Assessing evidence






15

Figure 2b: Usefulness of lay members in stages of decision-making process – lay members

Notes: Bases are 1129, 1133, 1134, 1132, 1132 and 1135 respectively due to item non-responses.

This broad pattern is repeated in Figures 3a and 3b which show the added value of lay members as

viewed by the two groups in respect of the various technical elements of decision-making. Again lay

members are far more likely than judges to see this contribution as occurring ‘Often’ or ‘Sometimes’,

although even for the latter group, that contribution is seen as being relatively frequent for several

items including credibility of witnesses, Burchell test, contributory fault, Polkey, future loss, injury to

feelings and, to a lesser extent, reinstatement/re-engagement. Judges see lay members as less

commonly useful for pensions, bonus schemes and recommendations in discrimination cases; lay

members on the other hand, see their contributions here being common, although for the first two

of these, less so than for some of the other items.

50

13

25

70

35

35

47

87

73

5

61

62

4

2

24

3

3

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100

Identifying issues

Assessing evidence





27

43

39

25

44

46

2

45

48

1

35

33

58

9

11

53

21

16

13

3

2

22

1

5

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100

Identifying issues

Assessing evidence






27

43

39

25

44

46

2

45

48

1

35

33

58

9

11

53

21

16

13

3

2

22

1

5

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100

Identifying issues

Assessing evidence






27

43

39

25

44

46

2

45

48

1

35

33

58

9

11

53

21

16

13

3

2

22

1

5

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100

Identifying issues

Assessing evidence






27

43

39

25

44

46

2

45

48

1

35

33

58

9

11

53

21

16

13

3

2

22

1

5

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100

Identifying issues

Assessing evidence






16

Figure 3a: Added value of lay members to facets of decision-making process – judges

Notes: Bases are 190 for the first five items, and then 184, 181, 184, 173 and 182 respectively for the remainder due to

item non-responses.

Figure 3b: Added value of lay members to facets of decision-making process – lay members

Notes: Bases are 1135, 1117, 1125, 1128, 1127, 1121, 1103, 1108, 1096 and 1106 respectively due to item non-responses.

Percentages <1 are not labelled for presentational reasons.

1

2

21

32

17

12

5

22

13

22

15

21

48

48

42

32

41

48

45

44

44

45

27

16

32

41

54

28

41

33

39

31

5

4

9

15

0 10 20 30 40 50 60 70 80 90 100

0 10 20 30 40 50 60 70 80 90 100

Credibility of witnesses

Burchell test

Contributory fault

Polkey

Future loss

Injury to feelings

Bonus schemes

Pensions

Recommendations in discrimination cases

Reinstatement/re-engagement

Never Rarely Sometimes Often

1

1

1

1

3

1

3

2

5

13

19

5

13

9

35

21

31

28

28

41

46

31

29

91

62

78

67

71

67

44

34

64

57

0 10 20 30 40 50 60 70 80 90 100

0 10 20 30 40 50 60 70 80 90 100

Credibility of witnesses

Burchell test

Contributory fault

Polkey

Future loss

Injury to feelings

Bonus schemes

Pensions

Recommendations in discrimination cases

Reinstatement/re-engagement

Never Rarely Sometimes Often

17

Majority decisions

Respondents were asked how many times they could recall having a majority decision in the

previous 12 months. Among judges14, more than 70 per cent could not recall any such occasion,

while 21 per cent recalled 1, 5 per cent 2 and 1 per cent each 3 and 4 instances. Expressed in

absolute terms, just 15 judges could recollect more than a single majority decision, with only 77

majority decisions in total between them; an average across the entire sample of just over one third

each. In such cases the dissenter was the lay member on 60 occasions (74 per cent).

Judges were also asked how frequently over the same period they could recall a minority opinion as

to one (or more) issues in a case even though the decision itself was unanimous. A similar

percentage (78 per cent15) reported no minority opinions over the year, 19 per cent 1 such opinion,

4 per cent reported 2, and 1 per cent 3. Aggregating, 51 minority opinions were reported by

respondents in total, of which the minority opinion holder was the lay member in all except one of

the 38 instances where this information was recorded16.

Asked whether they had materially altered a lay members’ initial view on liability and remedy, 31

and 22 per cent of judges respectively said they had ‘Often’ done so, with a further 63 and 66 per

cent saying that had ‘Sometimes’ done so. However, when asked how often lay members had

affected one or more of their initial views, the corresponding figures are 4 and 45 per cent for

liability and 4 and 41 per cent on remedy.

When lay members were asked how often they had affected a judge’s initial views, 12 per cent said

they had done so ‘Often’ and 70 per cent ‘Sometimes’ in relation to liability, with 14 and 61 per cent

in relation to remedy. Judges on the other hand, were seen as having materially altered a lay

member’s initial view ‘Often’ by 7 per cent and ‘Sometimes’ by 68 per cent of lay members for

liability and 7 and 65 per cent respectively for remedy. Again the perspective-dependent nature of

responses is striking (confirming previous work considering the perceptions of claimants and

employers by Dennison and Corby, 2005 and by Latreille, 2007).

Views on lay members

Figures 4a and 4b next examine several attitudinal variables in relation to the role of lay members,

essentially asking respondents to consider how that role might be externally perceived. As can be

seen, both groups (but especially lay members) essentially disagree that a three person tribunal is

likely to be more intimidating than a judge sitting alone. Both groups also broadly agree that a three

person tribunal is likely to have greater legitimacy for the parties than a judge alone, but again, lay

members hold their views especially strongly. For the remaining two statements, roughly equal

proportions of judges agree and disagree. Lay members in contrast, typically hold much less

ambiguous views, almost all feeling that their role has not reduced due to the growing complexity of

employment law and agreeing that they are needed to ensure public confidence in the system.

14

Responses among lay members suggest this question was interpreted differently by some respondents, with some appearing to interpret it as meaning ‘unanimous’. For this reason these data are not considered safe, and are not reported, although even here the strong majority report no such decisions in the previous 12 months. Less confusion was evident for minority decisions, where 82 per cent reported no such outcomes, 11 per cent 1 such occasion and 7 per cent 2 or more. 15

n=187 due to four item non-responses. 16

One respondent who identified the number of minority opinions did not answer the supplementary question.

18

Figure 4a: Attitudinal views – judges

Notes: Bases are 189, 188, 1987 and 188 respectively due to item non-responses.

Figure 4b: Attitudinal views – lay members

Notes: Bases are 1136, 1136, 1129 and 1135 respectively due to item non-responses.

Table 11: Judges’ preference for sitting alone

Frequency Frequency (%)

Always 16 Sometimes 43 Never 6 No preference 2 Depends on the jurisdiction 33 Base: 186

Table 11 above reports the results of a question asking judges whether they prefer sitting alone. As

can be seen, while only a minority (one in six) would always prefer to do so, more than half say they

42

19

32

31

15

3

5

13

29

23

20

23

12

42

31

28

2

13

12

4

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100

A three person tribunal is likely to be more intimidating for parties than a judge sitting alone

A three person tribunal generally has greater legitimacy for parties than a judge sitting alone

The contribution of lay members has declined in recent years due to the growing volume and complexity of employment law

Public confidence in the tribunal system is likely to be lower in cases where judges sit alone

Disagree Strongly disagree Neither agree nor disagree Agree Strongly agree

42

42

1

47

2

40

8

10

10

3

31

7

41

66

2

47

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100






19

would wish to do so at least sometimes, with a further third saying it would depend on the

jurisdiction.

Workplace experience

Both judges and lay members were asked how long the latter should continue to be allowed to sit at

the ET once their workplace experience ceases to be current (Table 12). Around half of both groups

felt there should be no limit, with a further 9 per cent of judges and 19 per cent of lay members

indicating that a period in excess of 5 years would be acceptable.

Table 12: Time lay members should continue sitting on ETs after workplace experience ceases to

be current

Frequency Frequency (%)

Judges Lay members

Less than 3 years 14 8 4-5 years 25 24 Some other period more than 5 years 9 19 Should not be limited 52 49 Base: 188 1126 Notes: One lay member indicated lay members sitting should be limited beyond age 70, while another gave conflicting

responses; both are excluded from the calculations above.

Alternative roles for lay members

A series of questions in the survey asked respondents to consider alternative roles for lay members.

More than 90 per cent of judges said they would not support two lay members sitting without a

judge. The vast majority were also reluctant for a single lay member to act as an expert

adviser/assessor to an ET judge (as for example in the County and Sheriff Courts). As to specialist

employer/employee lay members, 51 per cent felt there was potentially a case, 47 per cent of all

judges felt this might apply for equal pay cases, 26 per cent for discrimination, and 14 per cent for

health and safety related cases, but just 6 per cent for public interest disclosure. In relation to a

single lay member acting as an expert adviser/assessor, 21 per cent felt there was potential for such

a role, most commonly for discrimination (10 per cent of all judges), remedies (10 per cent), health

and safety related issues (9 per cent) and liability in unfair dismissal cases (6 per cent), all others

being less than 5 per cent.

Perhaps not surprisingly, lay members were more receptive to these alternative roles. For example,

while approximately two thirds of lay members would not support sitting without an employment

judge, 13 per cent felt this would be appropriate in unfair dismissal cases, 17 per cent for remedies,

and 28 per cent for unpaid wages, holiday pay etc. Some 55 per cent saw a case for specialist

employer/employee lay members, a similar percentage as for judges, although the types of case

identified were rather different, with discrimination being the most commonly supported (38 per

cent of all lay members), followed by equal pay (35 per cent), and greater support for their use in

health and safety related cases (32 per cent) and public interest disclosure (16 per cent). A higher

percentage than judges also thought there might be a role for a single lay member as an expert

adviser/assessor (32 per cent), most notably in relation to liability in unfair dismissal cases (19 per

cent of all lay members), health and safety (also 20 per cent) and also unpaid wages, holiday pay etc.

20

(18 per cent), discrimination and public interest disclosure (16 per cent and 14 per cent

respectively).

Respondents were also asked whether there were PHRs/jurisdictions where a 3-person tribunal

should be the default position, rather than judge alone as at present. Just over a fifth (21 per cent) of

judges answered in the affirmative, while 34 per cent of lay members did so. When asked, however,

whether there were jurisdictions where there should be statutory provision for judges to sit alone

but this option was not currently available, almost half (46 per cent) of judges responded in the

affirmative, compared with just 3 per cent of lay members.

Enhancing the role of lay members

A final set of issues concerns factors that might enhance the contribution of lay members. These are

detailed in Tables 13a and 13b. A clear conclusion emerging from both groups is that more frequent

lay member sittings is most commonly ranked as the factor that would enhance lay members’

contributions, followed by time for preparation in advance of hearings.

Table 13a: Ranking of factors that would enhance lay member contributions – judges


1 2 3 4 5

More frequent training 10 33 26 19 5 Better quality training 20 18 27 17 11 Time for preparation in advance of hearings 27 21 12 24 13 More access to legal materials 1 3 11 22 54 More frequent lay member sittings to enable tribunal expertise to be maintained

41 19 18 10 9

Notes: Base is 144 respondents. Row percentages sum to less than 100% where a number of respondents ranked fewer

than 5 items. 31 responses were invalid (e.g. ticks rather than ranks) and are excluded from both the analysis and base.

Table 13b: Ranking of factors that would enhance lay member contributions – lay members


1 2 3 4 5

More frequent training 7 17 29 24 20 Better quality training 17 24 23 21 14 Time for preparation in advance of hearings 28 26 18 17 9 More access to legal materials 2 6 15 27 48 More frequent lay member sittings to enable tribunal expertise to be maintained

45 26 13 8 7

Notes: Percentages sum to less than 100% where a number of respondents ranked fewer than 5 items. 246 responses were

invalid (e.g. ticks rather than ranks) and are excluded from both the analysis and base (n=882).

Although training ranked further down their list of priorities as the above demonstrates, lay

members were asked what they would like more training in. Again a clear set of priorities emerges:

68 per cent of the 1125 respondents answering this question wanted more training in employment

law, followed by 50 per cent in judicial skills and 25 per cent in tribunal procedure, with just over 6

per cent mentioning other training.

Finally, asked whether appraisal should be introduced for lay members, just under two thirds (64 per

cent) of the 137 judge respondents who answered agreed. This is very similar to the figure among

21

the 1113 lay members who answered (69 per cent). Thus there is clearly a view that this would be

beneficial, but the nature of that system and its resourcing might be problematic. 17

17

Regional Employment Judges currently appraise fee-paid judges, but not salaried judges.

22

Results – Comparing ET findings in England and Wales with Scotland As noted in the introduction, differences in Scotland relative to England and Wales suggested there

might be value in comparing the responses in the two areas, something undertaken here. Because of

the small number of judge respondents in Scotland, findings for this group should be taken as

indicative only. For this reason also, statistical tests of differences have largely been eschewed for

the sake of consistency of treatment, since predicted cell counts in cross-tabulations would for

judges, in most instances, fall below the size conventionally regarded as acceptable.


In terms of basic demographics, the characteristics of Scottish judges who responded to the survey

appear to differ from those in England and Wales. As Table 14 shows, Employment Judges in the

latter are predominantly male (65 per cent of respondents), whereas in Scotland, more than half are

female. They also appear slightly younger with a median age in Scotland of 50-54 compared with 55-

59 among their counterparts in England and Wales, but are exclusively white, whereas in England

and Wales a small proportion (5 per cent) are from BME groups. Judges in Scotland are slightly more

likely to be fee-paid compared with England and Wales, and also have significantly less total

experience (8.94 years compared with 12.04)18.

Some of these differences are also apparent in the lay member sub-samples. Whereas virtually

identical gender compositions exist in England and Wales and in Scotland, the median age group in

the former is 60-64 compared with 55-59 in the latter (age profiles in the two regions are in fact

statistically significant (p=0.022)), while fewer lay members come from BME groups in Scotland

(p=0.011), the last likely reflecting underlying demographics in the wider population with, we are

advised, substantial variation within Scotland. In relation to method and panel of appointment, the

data look similar for the two sub-samples, although if anything the Scottish sample has a slightly

higher percentage appointed by open competition (67 per cent compared with 61 per cent) and to

the employer panel (57 per cent compared with 52 per cent)19. Like judges, Scottish lay members

also have less ET experience (9.67 years) compared with those in England and Wales (11.35 years, p-

value for difference 0.012). They appear however, slightly more likely to have current/recent

workplace experience in the previous 12 months, with 87 per cent report reporting such experience

compared with 82 per cent in England and Wales (albeit this difference is not statistically significant

at conventional levels (p=0.137)).

18

p-value for difference 0.048. 19

Pearson χ2 tests indicate these differences are not statistically significant (p=0.428 and p=0.270 respectively).

23

Table 14: Respondent characteristics


England & Wales Scotland

Judges Lay Members Judges Lay Members

Sex Male 65 55 47 55 Female 34 44 53 43 Missing data - >0 - 1 Age Under 40 5 1 - 4 40-44 7 4 11 6 45-49 13 8 26 12 50-54 19 14 16 14 55-59 15 17 11 25 60-64 22 31 16 25 65 or over 16 23 21 15 Prefer not to say 2 1 - - Missing 1 >0 - 1 Ethnic group White – British 84 87 100 93 White – other 7 4 - 4 BME 5 7 - 2 Prefer not to say 4 1 - 1 Missing - >0 - 1 Current status (judges only) Fee paid 60 68 Salaried 39 32 Missing data 1 - Panel Employer 52 57 Employee 48 43 Appointment method (lay members only)

By nomination 39 33 Through open competition 61 67 Both >0 - Other >0 - Missing >0 - Base: 171 1003 19 138

24


Only minor differences were evident between England and Wales compared with Scotland in

relation to judges’ views of how lay member expertise had changed since they first started sitting,

although those in Scotland were somewhat more inclined to say members had more direct

workplace experience (14 per cent compared with 7 per cent) and correspondingly less likely to say

they had less (29 per cent compared with 42 per cent). They were also more likely to consider that

lay members were drawn from a broader cross-section of society (36 per cent compared with 26 per

cent) rather than staying the same, which might suggest that appointment according to Nolan

principles (is seen as having) had more of an effect in the Scottish context. As the demographic data

above indicates, there is some indication that more lay members have been appointed under Nolan

than in England and Wales, although this difference is not statistically significant.


Turning to the number of occasions in the last 12 months where judges had sat with lay members in

a Pre-Hearing Review (PHR), it would appear that this practice is less common in Scotland: 32 per

cent of judges indicated they had done so, compared with 41 per cent in England and Wales. In

contrast, Scottish judges were more likely to have sat with members in a Hearing, with almost two

thirds indicating they had done so at least once, compared with 45 per cent in England and Wales.

While the numbers in Scotland are especially small, suggesting caution, the data also suggest that

the latter reflects different factors, with the views of the parties being more prominent there

(ranked as the most important factor by half of judges compared with one in seven in England and

Wales), compared with the likelihood of a dispute arising on the facts (seen the most important

factor by 73 per cent of judges in England and Wales compared with 38 per cent in Scotland).

As described above, both judges and lay members were asked to assess the appropriateness of the

present criteria distinguishing cases where judges can sit alone and those where they have to sit

with members in respect of PHRs and Hearings. Only small differences exist for judges, with 37 per

cent seeing the basis for sittings at PHRs as ‘Completely appropriate’ and a roughly just under half

seeing them ‘Broadly appropriate’. Judges in Scotland are marginally less positive about the criteria

in relation to Hearings than their counterparts in England and Wales (72 per cent seeing them as

‘Completely’ or ‘Broadly’ appropriate compared with 79 per cent in England and Wales). Lay

members in the two areas also hold broadly similar views, with 20-25 per cent seeing the basis at

PHRs as ‘Completely appropriate’, and two thirds seeing the division as ‘Broadly appropriate’. While

both sets of lay members are less inclined to see the basis for Hearings as appropriate than judges,

overall those in Scotland appear slightly more likely to do so either ‘Completely’ or ‘Broadly’ than

those in England and Wales (72 per cent compared with 62 per cent).


In assessing lay members’ contributions, the research sought to separate those which arose as a

consequence of the presence of lay members, and those from their activities. Figures split by

England and Wales and Scotland for judges indicate only modest differences. General workplace

experience was mentioned by 74 per cent of both groups, followed by a balance between legal and

workplace perspectives. Greater confidence by virtue of a three person decision came third, being

mentioned by around 60 per cent, and reassuring the parties that their perspective will be

understood by slightly more than four in ten. Comparing lay members’ views in the two parts of

Great Britain reveals few differences, with two thirds identifying their contribution as including

25

providing general workplace experience and around three quarters identifying the balance between

legal and party perspectives. However, lay members in Scotland were slightly less likely to mention

ensuring that the hearing is fair (34 per cent compared with 43 per cent in England and Wales).

Lay members’ most important (ranked) contributions in respect of their activities at hearings are set

out in Table 15 below. Among judges, some major differences emerge between the two sub-

samples, with 46 per cent of those in England and Wales ranking the provision of a non-legal

perspective as most important, compared with 26 per cent of judges in Scotland. In contrast, more

than half (53 per cent) of judges in Scotland ranked lay members’ most important activity

contribution as being their observational role. As in the earlier findings for Great Britain as a whole,

lay members saw being the eyes and ears of judges as being far less important than judges

(mentioned by just 3 per cent of lay members). Instead lay members were more likely to regard their

role as being to in identify issues either before or during hearings, and were much more likely to do

so than judges. As Table 15 shows, lay members in Scotland were more likely to rank identification

of issues during hearings first compared with those in England and Wales, while the latter were

more likely to do so with regard to identifying issues before hearings. This difference may reflect the

fact that witness statements are typically not used in Scotland.

Table 15: Activities ranked as most important lay member contributions in hearing process in its

entirety

Contributions Frequency of contribution ranking first (%)

England and Wales Scotland

Judges Lay members

Judges Lay members

Identify areas/issues for exploration before hearings

3 10 - 6

Identify areas/issues for further exploration during hearings

16 37 21 46

Act as the eyes and ears of the judge 31 3 53 3 Take notes 4 1 - - Help to ensure unrepresented parties understand technical terms

1 2 - -

Provide a non-legal perspective 46 47 26 46 Notes: Base is 154 judges and 902 lay members in England and Wales and 18 and 124 respectively in Scotland.

Comparing responses in England and Wales with Scotland concerning lay members’ overall

contributions on a 1 to 4 scale (1 = greatest contribution), again some differences emerge as shown,

as shown in Table 16. As mentioned above, lay members clearly perceive their contribution to be

much greater than judges. However, there are also differences by geography, with lay members in

Scotland returning a higher mean score (i.e. assessing their contribution as more modest) compared

with those in England and Wales (mean 1.60 compared with 1.49 respectively), a difference which is

weakly significant statistically (p-value for difference 0.09). Among judges a similar pattern is evident

(mean in England and Wales of 2.35, 2.42 in Scotland, p-value for difference of 0.07).

26

Table 16: Lay members’ perceived overall contribution to hearing process

Scale Frequency (%)


Judges Lay members Judges Lay members

1 18 62 11 55 2 41 30 42 35 3 29 4 42 6 4 12 3 1 5 Base: 168 976 19 133 Notes: Scaling is from 1 (most) to 4 (least).

In relation to lay members’ contributions at hearings, Scottish judges see a less frequent role for lay

members in relation to making them articulate their reasoning (53 per cent ‘Often’ or ‘Sometimes’

compared with 60 per cent in England and Wales), spotting points that might otherwise be missed

(53 per cent and 68 per cent respectively), and testing the judges’ assumptions/reasoning (67 per

cent and 79 per cent), but are slightly more likely to consider that lay members contribute in

assessing evidence of finding facts (95 per cent and 86 per cent).

Strikingly however, none of the Scottish judges felt lay members ‘Often’ extended the time needed

because discussion was necessary, compared with almost half of those in England (48 per cent), and

none felt they did so due to the need to reconvene in chambers compared with 34 per cent in

England and Wales. They were also less likely to report lay members delaying decisions due to the

need to reconvene in part-heard cases (5 per cent ‘often’ compared with 28 per cent in England and

Wales), and also saw lay members as asking irrelevant questions somewhat less frequently (lower

percentage saying ‘Sometimes’ (37 per cent compared with 52 per cent, and higher proportion

saying ‘Rarely’ (47 per cent compared with 31 per cent)).

In relation to contributions in particular jurisdictions, judges in Scotland appear more likely to

consider lay members add value in all jurisdictions than do those in England and Wales (37 per cent

compared to 22 per cent), with none of the Scottish respondents saying they do not add value in any

jurisdiction compared with one in twelve (8 per cent) in England and Wales. While there is some

variation in specific jurisdictions, adding in the ‘all jurisdictions’ data it is clear that judges in Scotland

essentially appear to see as much or more value for lay members across most of the listed

jurisdictions with the possible exception of collective redundancy/protective awards and also unfair

dismissal, where the combined percentages are identical (Table 17).

The data in Table 17 also reveals broad consistency in lay member views in England and Wales and

Scotland, with most lay members seeing a strong role across all jurisdictions, and the bigger

differences relating to the views of judges versus lay members.

27

Table 17: Jurisdictions in which lay members add value to decision making




Unfair dismissal 58 [80] 24 [100] 53 [80] 28 [99] Discrimination 65 [87] 24 [99] 53 [90] 29 [100] Equal Pay 23 [45] 15 [91] 21 [58] 16 [87] TUPE 15 [37] 16 [92] 11 [48] 18 [89] Breach of contract 6 [28] 16 [91] - [37] 23 [94] Collective redundancy/protective awards

11 [33] 14 [89] - [37] 16 [87]

Other 1 1 - 2 Add value in all jurisdictions whether or not listed above

22 76 37 71

Do not add value in any jurisdiction

8 - - -

Base: 169 134 19 988 Notes: Multiple responses allowed. Percentages for specific jurisdictions do not include responses where ‘all jurisdictions’


they do so in all jurisdictions (not presented for ‘Other’ since choices vary); sums subject to rounding. Two lay member

respondents provided inconsistent data and are excluded.

Table 18 next shows how useful lay members are seen as being at various stages of the decision-

making process. As discussed in relation to Great Britain as a whole, judges view lay members’

contribution as being much less important in relation to identifying the issues and in applying legal

principles in both geographies. However, there are also interesting differences with regard to

England and Wales compared with Scotland, where with the exception of identifying the issues, lay

members are slightly less unequivocal as regards their contribution especially in relation to making

findings of fact and reaching decisions on both liability and remedy (higher percentages choosing the

‘Quite useful’ option rather than ‘Very useful’). This is mirrored by the views of judges, albeit the

differences are more modest. Nonetheless, the most striking differences remain those between

judges and lay members, most notably with regard to identifying the issues.

Table 18: Percentage reporting lay members ‘Very useful’ in stages of decision-making




Identifying the issues 2 44 - 68 Assessing the evidence 45 88 42 85 Making findings of fact 48 75 21 58 Applying legal principles 1 5 - 5 Reaching a decision on liability 35 64 26 43 Reaching a decision on remedy 34 65 32 41 Base: 170 136 19 992

28

Similar patterns are evident in relation to various technical elements of decision-making (Table 19),

with lay members universally reporting they add value ‘Often’ to each aspect than judges, and with

judges and lay members in England and Wales typically being more positive than their counterparts

in Scotland (who are more correspondingly more likely to report they add value ‘Sometimes’). Many

of these geographical differences are small, but a few are more substantial, for example in relation

to future loss and injury to feelings, and among lay members themselves, Polkey and Burchell.

Indeed, only in relation to credibility of witnesses do Scottish lay members see themselves as adding

value ‘Often’ more commonly than their counterparts in England and Wales.

Table 19: Percentage reporting lay members ‘Often’ add value to decision-making




Credibility of witnesses 54 90 53 96 Burchell test 29 64 21 52 Contributory fault 42 79 37 72 Polkey 33 68 32 56 Future loss 41 73 26 54 Injury to feelings 32 68 22 55 Bonus schemes 6 46 - 36 Pensions 4 34 - 30 Recommendations in discrimination claims

9 66 6 55

Reinstatement/re-engagement 14 57 22 53 Notes: Bases vary from 157 to 170 for judges in England and Wales, from 16-19 for judges in Scotland, from 959 to 996 for

lay members in England and Wales, and from 131 to 137 for lay members in Scotland.

Majority decisions and influence

Compared with England and Wales, data from judges suggests that while still very rare, majority

decisions are marginally more common in Scotland, with 42 per cent reporting one or more such

decisions in the previous 12 months compared with 28 per cent in England and Wales. Minority

opinions in contrast, appear to be similarly frequent, with just over three quarters of judges

reporting such an instance.

In relation to influencing decision-making at hearings, the data suggest that this is perhaps

somewhat more common in England and Wales. For example, almost half of judges there reported

having materially altered at least one of their initial views on liability ‘Often’ or ‘Sometimes’ after

discussion with lay members in the last 12 months, compared with just over a third of judges in

Scotland, where 26 per cent said this had ‘Never’ happened. For liability, the picture is almost

identical. Among lay members the corresponding figures for influencing a judge’s views are 83 per

cent and 76 per cent.

In relation to judges influencing lay members, again the situation appears different in Scotland,

where 78 per cent of judges could recall influencing a lay member’s initial view on liability in the

previous 12 months, compared with 95 per cent in England and Wales. On remedy the figures are 76

and 63 per cent, with none of those in Scotland saying this happened ‘Often’.

29


Turning to the attitudinal variables concerning external perceptions of the role of lay members, the

data reveal only modest differences from the aggregate figures described in the previous section,

and are not tabulated here. Among those differences which do emerge, the most substantial and

interesting is that judges in Scotland appear slightly more likely to agree that the role of lay

members has declined in recent years (50 per cent compared with 42 per cent in England and

Wales).

In relation to preferences for sitting alone, and perhaps reflecting the somewhat smaller perceived

contribution lay members are seen as making there, but also subject to the caveat of small numbers,

judges in Scotland are less likely to say they prefer to sit with members always (6 per cent compared

with 17 per cent in England and Wales), but more likely to say ‘Sometimes’ (50 per cent and 42 per

cent respectively). Strikingly, they are also more likely to say ‘Never’ (17 per cent compared with 5

per cent). This is mirrored by a lower percentage of lay members in Scotland who feel that judges

value their contribution (91 per cent compared with 96 per cent), although this figure is very high

regardless of location.


As described in the combined results above, both judges and lay members were asked how long the

latter should continue to be allowed to sit at the ET once their workplace experience ceases to be

current. Only modest differences exist between judges in England and Wales compared with

Scotland, with just over half of both constituencies saying this should be unlimited. Among lay

members however, only 4 in 10 of those in Scotland agreed that this should be the case compared

with half of those in England and Wales, whereas roughly twice as many felt the period should be

restricted to less than 3 years (15 per cent compared with 8 per cent).


As described previously, a series of questions in the survey asked respondents to consider

alternative roles for lay members. In relation to lay members sitting without a judge in certain

circumstances, more than 90 per cent of judges in both England and Wales and in Scotland would

not support such a proposal. Judges in Scotland, however, were slightly more receptive than those in

England and Wales to the possibility of specialist lay members, with 53 per cent considering there

was a case for this in relation to equal pay compared with 46 per cent in England and Wales; 37 per

cent seeing potential for such a role in relation to discrimination (cf. 24 per cent); and 21 per cent for

health and safety issues (cf. 13 per cent). They were also somewhat more inclined to consider lay

members acting as expert advisers/assessors, for example concerning liability in unfair dismissal

cases (16 per cent cf. 5 per cent), and especially on health and safety matters (21 per cent cf. 8 per

cent).

As noted in the previous section, lay members are more receptive to each of these alternative roles,

but differences between England and Wales and Scotland are typically much smaller than was true

for judges. In this regard the larger divergence is between judges and lay members, rather than

between England and Wales relative to Scotland.

Respondents were also asked whether there were PHRs/jurisdictions where a 3-person tribunal

should be the default position, rather than judge alone as at present. Just over a fifth (21 per cent) of

judges answered in the affirmative overall (26 per cent in Scotland and 20 per cent in England and

30

Wales), while 34 per cent of lay members did so (27 per cent in Scotland and 35 per cent in England

and Wales). Concerning jurisdictions where there should be statutory provision for judges to sit

alone but this option was not currently available, almost half, 46 per cent of judges in England and

Wales agreed, compared with 42 per cent in Scotland, and just 3 per cent of lay members in both

locations.


The final set of issues, as previously, concerns factors that might enhance the contribution of lay

members. Here some interesting differences emerge by geography. In particular, whereas 20 per

cent of judges in Scotland ranked more frequent training top (of five), and a further 47 per cent

ranked this second, in England and Wales the figures were just 11 per cent and 33 per cent

respectively. Instead, almost a quarter of judges in England and Wales ranked better quality training

top and a further fifth ranked this second, compared with just 7 per cent for each north of the

border. Among both groups, more frequent sittings was however ranked top by the largest

percentage of respondents, although it is notable that this was clearly seen as a more important

issue in Scotland (53 per cent cf. 41 per cent).

Among lay members, the focus is less heavily on training, as noted earlier. The single biggest issue is

instead the frequency of sittings (ranked first by 52 per cent in Scotland and 45 per cent in England

and Wales). However, the quality of training was ranked first by almost a fifth of those in England

and Wales, compared with just 3 per cent in Scotland, confirming the data emerging from the judge

sub-samples. A higher percentage in Scotland also ranked more preparation time as the most

important factor (36 per cent compared with 28 per cent in England and Wales).

In relation to what further training might cover, few differences between lay members in England

and Wales and in Scotland were evident, although slightly more of the latter indicated they would

welcome more training in tribunal procedure (31 per cent compared with 24 per cent in England and

Wales).

Finally, asked whether appraisal should be introduced for lay members, slightly more of those in

Scotland were supportive of this idea, with 78 per cent of judges and 72 per cent of lay members

agreeing, compared with 62 and 68 per cent respectively in England and Wales.

31

Results – EAT


Turning to the EAT responses, Table 20 reveals a broadly similar pattern to the ET data in terms of

the characteristics of those responding to the questionnaire. Most EAT judges in the sample are

male, with the median age being 60-64. Those who declare their ethnicity are exclusively white.

Most lay members are also male (67 per cent), with the median and modal age groups being 60-64

and 65 and over respectively (37 per cent are aged 65 or over). 8 per cent of lay members (3

individuals) are from BME groups.

On average judges have around 9 years of experience in this role. For lay members, average

experience levels are similar at 10 years and respondents are evenly split between employer and

employee panels (49 and 51 per cent respectively), with more than three quarters (77 per cent)

appointed through open competition. Most (90 per cent) had had workplace experience in the

previous 12 months. Among those four for whom this was not the case, on average it had been 6

years since they had had such experience.


As at the ET, EAT judges were asked to assess how the expertise/profile of lay members had

changed. Most identified no change in relation to knowledge of employment law (75 per cent),

analytical skills (75 per cent), direct workplace experience (53 per cent), and the cross-section of

society from which lay members were drawn (63 per cent). Only for awareness of diversity issues

was there clearer evidence of change, with 60 per cent saying this had increased, although for

knowledge of employment law, there was some suggestion that any change was also in the direction

of ‘More’.


Judges were asked on how many occasions in the last 12 months they had sat with lay member in a

departure from the default position. 47 per cent had not done so, while a fifth had done so on 1 or 2

occasions, and 20 per cent 3 or more times.

Both judges and lay members were asked about the appropriateness of the present criteria

distinguishing cases where EAT judges can sit alone and those where they have to sit with members.

Most judges felt the current basis was at least broadly appropriate (73 per cent) with the remainder

saying the criteria were ‘Not very appropriate’. Lay members were less sanguine, with 49 per cent

saying they were ‘Not very appropriate’ and 14 per cent ‘Not at all appropriate’.

32

Table 20: Respondent characteristics – EAT


Judges Lay Members

Sex Male 69 67 Female 13 28 Missing data 19 5 Age Under 40 - - 40-44 - - 45-49 - 5 50-54 - 8 55-59 25 18 60-64 31 28 65 or over 25 36 Prefer not to say - 3 Missing data 19 - Ethnic group White – British 81 79 White – other - 3 BME - 8 Prefer not to say - 5 Missing data 19 5 Panel Employer 49 Employee 51 Appointment method (lay members only) By nomination 23 Through open competition 77 Base: 16 27


As at the ET, the research sought to identify lay member contributions those which arose as a

consequence of the presence of lay members, and those arising from their activities. The former is

reported in Table 21. As is clear, judges saw lay members’ main contributions as providing general

workplace experience, a balance between legal and parties’ perspectives and the reassurances they

provide to parties. As at the ET, few saw their presence as guarding against allegations of

bias/misconducting of the hearing. Lay members also saw workplace experience and reassurance to

parties as important, but were also substantially more likely than were judges to see themselves

providing a balance between legal and other perspectives. Strikingly, none of the judges saw the

presence of lay members as helping to ensure fairness, whereas almost a fifth of lay members did

so.

33

Table 21: Contributions from presence of lay members at the EAT

Contributions (in judges’ rank order) Frequency (%)

Judges Lay members

Provide general workplace experience 80 64 Ensure a balance between the legal perspective and employer/worker perspectives

60 72

Reassure parties that their perspective or situation will be understood 53 56 Give parties greater confidence as a result of the decision being that of three persons rather than of a single person

53 62

Provide specific industry expertise 33 21 Reduce the risk of a judge sitting alone being wrongly accused of bias 13 8 Reduce the risk of a judge sitting alone being wrongly accused of misconducting the hearing

7 -

Help to ensure the hearing is fair - 18 Base: 11 27 Notes: Respondents were allowed to choose up to three possible contributions. 1 judge response was inappropriately

coded is excluded.

Lay members’ contributions in respect of their activities were ranked in importance from 1 to 5.

These are not tabulated due to cell sparsity, but of the 10 judges providing valid data, lay members’

most important activities were seen as providing a non-legal perspective (60 per cent) and

identifying issues prior to the hearing (40 per cent). Among the 37 valid lay member responses, the

most important activity was reported as being providing a non-legal perspective (32 per cent),

followed by identification of issues before the hearing (35 per cent), and identifying issues during the

hearing (19 per cent).

As at the ET, both groups were asked to assess the overall contribution they felt lay members made

to the hearing process. The results are shown in Table 22. Confirming the pattern at the ET, lay

members rate their contribution more highly than do judges, although for both groups mean scores

are higher (i.e. less favourable) than at the ET (1.59 for lay members compared with 1.50 among ET

respondents, and 2.64 for judges compared with 2.36 among ET judges).

Table 22: Lay members’ perceived overall contribution to hearing process – EAT

Scale Frequency (%)

Judges Lay members

1 14 54 2 29 35 3 36 8 4 21 3 Base: 14 37 Notes: Scaling is from 1 (most) to 4 (least).

34

Tables 23a and 23b document the frequency with which lay members were seen by the two groups

as contributing to various aspects of the decision-making process. Judges clearly see lay members

making contributions in respect of all the listed aspects at least some of the time, most notably in

relation to workplace knowledge/expertise. Lay members, not surprisingly, see an even stronger

contribution across all aspects, the difference being especially pronounced in relation to assessing

the facts and bringing workplace expertise. For the latter, 69 per cent of judges thought that lay

members only contributed ‘Sometimes’ or ‘Rarely’, whereas 92 per cent of lay members felt they

actually did so ‘Often’.

Table 23a: Frequency of lay member contribution to judges’ part in decision-making process – EAT

judges


Often

Some- times

Rarely Never

Make judge articulate reasoning 25 44 19 13 Spot important points that would otherwise be missed 19 38 31 13 Assess the facts 19 50 25 6 Test judges’ assumptions and/or reasoning 19 50 25 6 Bring workplace knowledge/expertise 44 38 19 - Notes: Base is 16 for each statement.

Table 23b: Frequency of lay member contribution to judges’ part in decision-making process – EAT

lay members


Often

Some- times

Rarely Never

Make judge articulate reasoning 33 38 28 - Spot important points that would otherwise be missed 31 62 8 - Assess the facts 67 26 8 - Test judges’ assumptions and/or reasoning 49 41 10 - Bring workplace knowledge/expertise 92 8 - - Notes: Base is 39 for each statement.

Tables 24a and 24b next assess the frequency with which lay members might delay decision-making.

As these reveal, the most frequently mentioned sources of delay are those that are largely

unavoidable, arising simply from the fact of having multiple persons on the panel. Few consider lay

members’ questioning to be inappropriate. As at ETs, lay members are less likely to consider they

delay matters compared with judges’ perceptions, and indeed, only a few lay members considered

that they ‘Often’ extended time due to the need for discussion or to consider draft judgments

(compared with 31 per cent and 25 per cent of judges respectively).

35

Table 24a: Frequency of lay member delay to decision-making process – EAT judges


Often

Some-times

Rarely Never

Extend time taken because discussion is necessary 31 13 50 6 Extend time to consider draft judgments / reasons 25 25 44 6 Ask irrelevant questions 6 38 38 19 Ask questions in an inappropriate manner - 13 50 38 Notes: Base is 16 for each statement.

Table 24b: Frequency of lay member delay to decision-making process – EAT lay members


Often

Some-times

Rarely Never

Extend time taken because discussion is necessary 8 36 46 10 Extend time to consider draft judgments / reasons 3 33 56 8 Ask irrelevant questions 3 10 62 26 Ask questions in an inappropriate manner 5 - 46 49 Notes: Base is 39 for each statement.

Table 25: Jurisdictions in which EAT lay members add value to decision making


Judges Lay members

Unfair dismissal 38 [69] 26 [100] Discrimination 38 [69] 26 [100] Equal Pay 38 [69] 23 [97] TUPE 13 [44] 21 [93] Breach of contract 19 [50] 15 [89] Collective redundancy/protective awards 19 [50] 18 [92] Other - - Add value in all jurisdictions whether or not listed above 31 74 Do not add value in any jurisdiction 19 - Base: 16 39 Notes: Multiple responses allowed. Percentages for specific jurisdictions do not include responses where ‘all jurisdictions’


they do so in all jurisdictions (not presented for ‘Other’ since choices vary).

Asked to assess jurisdictions in which the presence of lay members adds value, Table 25 reveals, as

with ET lay members, that lay members are more likely than judges to consider they add value in all

jurisdictions (74 per cent compared with 31 per cent). Similarly, none of the lay members considers

they do not add value in any jurisdiction, compared with 19 per cent of judges. As with the ET data,

in the context of the Government’s proposed reforms it is striking that among judges identifying

specific jurisdictions, unfair dismissal ranks highly – in this case joint top (with equal pay and

discrimination). Adding specific jurisdiction and ‘all jurisdictions’ figures reveals 69 per cent of judges

consider lay members add value for unfair dismissal, while all lay members consider that they do so

(also true for discrimination).

36

Figures 5a and 5b show the usefulness of lay members at various stages of the decision-making

process as perceived by EAT judges and EAT lay members respectively. As with ET data, and

notwithstanding the smaller sample sizes here (which are of course representative of the majority of

the underlying populations), a similar pattern is evident, with lay members seeing their contributions

as more useful than judges consider them on each of the items.

Figure 5a: Usefulness of lay members in stages of decision-making process – EAT judges

Notes: Bases are 12 in each case.

Figure 5b: Usefulness of lay members in stages of decision-making process – EAT lay members


50

50

31

50

13

31

0

25

31

4

19

13

6

6

31

13

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100

Identifying issues

Assessing the facts


Reaching a decision


64

85

5

95

36

13

80

5

3

15

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100

Identifying issues

Assessing the facts


Reaching a decision


27

43

39

25

44

46

2

45

48

1

35

33

58

9

11

53

21

16

13

3

2

22

1

5

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100

Identifying issues

Assessing evidence






27

43

39

25

44

46

2

45

48

1

35

33

58

9

11

53

21

16

13

3

2

22

1

5

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100

Identifying issues

Assessing evidence






27

43

39

25

44

46

2

45

48

1

35

33

58

9

11

53

21

16

13

3

2

22

1

5

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100

Identifying issues

Assessing evidence






27

43

39

25

44

46

2

45

48

1

35

33

58

9

11

53

21

16

13

3

2

22

1

5

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100

Identifying issues

Assessing evidence






27

43

39

25

44

46

2

45

48

1

35

33

58

9

11

53

21

16

13

3

2

22

1

5

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100

Identifying issues

Assessing evidence






27

43

39

25

44

46

2

45

48

1

35

33

58

9

11

53

21

16

13

3

2

22

1

5

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100

Identifying issues

Assessing evidence






27

43

39

25

44

46

2

45

48

1

35

33

58

9

11

53

21

16

13

3

2

22

1

5

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100

Identifying issues

Assessing evidence






27

43

39

25

44

46

2

45

48

1

35

33

58

9

11

53

21

16

13

3

2

22

1

5

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100

Identifying issues

Assessing evidence






37

Majority decisions

As with ET respondents, the survey asked how many times individuals could recall having a majority

decision in the previous 12 months. Some four fifths could not recall any such occasion, while 3 (19

per cent) recalled just 1 instance. In all three cases, the dissenter was reported as being a lay

member. Just one of the judges could recall a minority opinion and again the dissenter was a lay

member. As with lay members at the ET, a small proportion appeared to be confused by the term

‘majority’, but it is again evident that most had not experienced such an occasion in the previous 12

months, with lay members again being the dissenting voice. Minority opinions were reported by 6

lay members – on a single occasion by four of the lay members and 2 occasions by the third. On all

occasions the dissenting view was held by the lay member.

Asked whether they had materially altered a lay member’s initial view in the previous 12 months, 40

per cent of judges said they had ‘Often’ done so with a further 40 per cent saying ‘Sometimes’. Eight

(half of) judges said a lay member had ‘Sometimes’ influenced their own initial views, while six said

this happened only ‘Rarely’ and another two ‘Never’. Lay members typically view matters rather

differently: 8 per cent said they influenced a judge’s initial view ‘Often’, 74 per cent ‘Sometimes’,

and 18 per cent ‘Rarely’. Lay members reported judges influenced their own views in a similar

proportion of instances (13, 72 and 15 per cent respectively for ‘Often’, ‘Sometimes’ and ‘Rarely’).


Figures 6a and 6b next examine several attitudinal variables in relation to the role of lay members,

essentially asking respondents to consider how that role might be externally perceived. Again the

results are striking and largely confirm those from the ET data. As can be seen, both groups disagree

that a three person tribunal is likely to be more intimidating than a judge sitting alone, and also that

a three person tribunal is likely to have greater legitimacy for the parties than a judge alone, but as

at the ET, lay members’ views are more unequivocal than those of judges. For judges, roughly equal

proportions of judges agree and disagree that lay member contributions have declined as a

consequence of growing legal complexity, and also that public confidence in the system is lower

where judges sit alone, although perhaps slightly favouring the contrary view. Lay members

disagreed that their role had declined, almost unanimously agreeing that public confidence in the

system depended on their presence and to a person agreeing that lay members provided legitimacy

for parties.

One further question included on the EAT surveys compared with the ET instruments was whether

lay members were seen as adding more value in the ETs compared to the EAT. As Figures 5a and 5b

show, there are again differences between judges and lay members on this issue. While around 40

per cent of the former are neutral, the balance is clearly towards agreement with the statement; lay

members in contrast, typically disagree.

38

Figure 6a: Attitudinal views – EAT judges


Figure 6b: Attitudinal views – EAT lay members


Asked whether they prefer sitting alone, 4 judges (25 per cent) said they preferred to do so ‘Always’,

while a further 6 (38 per cent) said they ‘Sometimes’ did. 31 per cent said it depended on the

jurisdiction. Just one judge said they ‘Never’ preferred to sit alone.


As for ET respondents, both judges and lay members were asked how long latter should continue to

sit once their workplace experience ceased to be current. In comparison with the ET, EAT judges

were clearly inclined towards shorter periods, with almost half indicating lay members should only

sit for up to 3 years once the currency of their experience terminated, and only a third felt the

period should be unlimited. Some 58 per cent of lay members on the other hand, felt that there

should be no time limit, most of the remainder opting for 4-5 years (21 per cent) or less than 3 years

(13 per cent).

21

54

3

38

74

33

26

5

8

8

18

28

5

51

15

72

38

3

100 80 60 40 20 0 20 40 60 80 100

100 80 60 40 20 0 20 40 60 80 100





Lay members add more value in ETs than in the EAT


39


As with the ET questionnaires, views were sought on a range of alternative roles for lay members.

EAT judges were, like their ET counterparts, reluctant for lay members to act as expert

advisers/assessors, but more receptive to the possibility of specialist lay members, again primarily in

Equal Pay and discrimination cases, and in fact more so than lay members. While lay members were

marginally more inclined to see value in relation to a role as expert advisors than are judges, levels

of support are hardly overwhelming: 84 per cent do not consider an expert adviser role appropriate.

Both sets of respondents were asked whether sifts and Rule 3.10 hearings should be undertaken by

a 3-person tribunal rather than a judge alone. 36 per cent of lay members agreed with the former

and 72 per cent with the latter. In contrast, none of the judges felt that there was a case for a

tribunal to undertake sifts, and just two judges (13 per cent) felt Rule 3.10 hearings should be

undertaken by a 3-person tribunal. A similar pattern emerges in relation to preliminary/full hearings:

whereas just a quarter of judges felt there were such hearings where they currently sat alone but

the default position should be a 3-person tribunal, 79 per cent of lay members were of this view.

Asked whether there were preliminary/full hearings where judges currently sat with members but

they should be allowed to sit alone, 40 per cent of the judges were so minded, while just 3 per cent

of the lay members agreed. Both groups were also asked to assess the proposal in the Resolving

Workplace Disputes consultation that the EAT should be judge alone unless a judge orders

otherwise. Given the above, it is little surprise to discover that lay members are universally opposed

to this option, with 95 per cent strongly disagreeing. In contrast, judges hold more mixed views: six

(40 per cent) agree strongly, while one agreed somewhat (7 per cent), with the remainder

disagreeing (five of them (33 per cent), strongly).


As with the ET section above, the final set of issues considered factors potentially enhancing the

contribution of lay members. Among lay members, the message is clear: 91 per cent of the 34

respondents providing valid responses ranked increased sitting frequency as the most important of

the available options. Better quality training was ranked second by the majority (66 per cent), with

only 1 respondent placing more frequent training as their top item. Among judges in contrast,

exactly half of the 12 respondents giving valid answers thought better quality training was the chief

factor among the three listed that would enhance lay members’ contribution, followed by more

frequent sittings (42 per cent) and then more frequent training (8 per cent).

40

Conclusions The results above are based on relatively high response rates, and thus substantial confidence in the

findings is merited. The data reveal some interesting patterns. First, the evidence here demonstrates

that lay members’ main contributions, both at ET and EAT often appear to be articulated in terms of

providing workplace experience and providing a balance between legal and employer/worker

perspectives. Assessing the evidence/finding the facts is also seen as an important element of lay

members’ role at ETs, while assessing the facts is regarded as important at the EAT, particularly by

the lay members themselves.

Second, and crucially in relation to the proposed changes to give judges the power to sit alone at the

ET in unfair dismissal cases, high percentages of both ET lay members and judges (100 and 80 per

cent respectively) assess this as a jurisdiction where lay members add value to decision making.

Discrimination is another jurisdiction where a particularly high proportion of the various ET and EAT

respondents see lay members as adding value.

Third, considering lay members’ overall contribution to the hearing process, few judges or lay

members assessed this in terms of the lowest score on a 1 to 4 scale, with average respondent

scores suggesting a greater contribution at the ET than at the EAT. Interestingly, when asked directly,

EAT judges seemed to agree that lay members add more value at the ET than the EAT; EAT lay

members themselves however, typically disagreed with this contention. The data also indicate that

the majority of judges, both at the ET and the EAT, prefer to sit alone at least some of the time, with

small percentages always wishing to do so.

Perhaps the most striking finding which runs throughout the results – albeit not unexpectedly – is

that where the same questions are asked of both judges and lay members, their views clearly

diverge, sometimes dramatically20. While broadly favourable/positive, the former are much more

equivocal in their views of the role and contribution of the latter, who see their contribution as a

closer mirror to the role of judges (e.g. in identifying issues, assessing evidence/facts), while

contextualised by their workplace knowledge/expertise. Part of this divergence however, may

reflect the attention being paid to the role of lay members by the Resolving Workplace Disputes

consultation; undoubtedly lay members feel their current role to be threatened and this may lead to

a tendency to emphasise the importance of their contribution.

Finally, the evidence here does not suggest strong support for more substantial changes to that role

such as acting as expert advisers/assessors. What is clear however, is that both sides see the current

role as one that would be enhanced by more frequent sittings and time for preparation in advance

of hearings, while most ET judges and ET lay members would welcome the introduction of an

appraisal system for ET lay members.

As at the ET, it is also evident that more regular sittings are seen as key to enhancing lay members’

role by that group at the EAT, and that while EAT lay members support greater involvement in sifts

and especially Rule 3.10 hearings, these views are not shared by judges. Among both groups

however, there is only limited support for more fundamental changes such as lay members acting as

expert advisers.

20

Strikingly however, 95 per cent of lay members and 97 per cent of EAT lay members consider judges value their contribution.

41

Comparing the findings from the questionnaires administered to ET lay members and judges

according to whether they sit in England and Wales or in Scotland, two clear patterns emerge. First,

differences between judges and lay members are essentially much greater than spatial differences

between the same type of decision-maker, with the main findings holding in the separate

geographies. Secondly, the data appear to suggest that both lay members and judges in Scotland,

while positive about the role of the former, are often somewhat less fulsome in their views than

their English counterparts, but any comparisons are not straight forward. On the one hand, Scottish

judges are more likely than their counterparts south of the border to say that they ‘never’ like to sit

with lay members. On the other hand, judges in Scotland appear more likely than their southern

counterparts to consider lay members add value in all jurisdictions. These last conclusions must of

course be qualified by the small number of responses in the Scottish judges’ sample in particular,

which largely militates against testing whether such differences are statistically significant, but

broadly speaking, consistent patterns are evident in the data from both sides of the border.

42

References Aston, J., Hill, D. and Tackey, N.D. (2006) “The Experience of Claimants in Race Discrimination

Employment Tribunal Cases’, Employment Relations Research Series 55, London: Department of

Trade & Industry.

Babcock, L. and Loewenstein, G. (1997) “Explaining Bargaining Impasse: The Role of Self-serving

Biases”, Journal of Economic Perspectives, 11, pp. 109-126.

Dennison, P. and Corby, S. (2005) “Images in the Adversarial Mirror: A Study of the Employment

Tribunal System in Britain’, International Employment Relations Review, 11(1&2), pp. 21-36.

Department of Trade and Industry/NRG Group (undated) “DTI Employment Tribunal Service Lay

Members Case Study”, http://www.nrgplc.com/download/dti_case_study.pdf (accessed

10/05/2011).

Hoorens, V. (1993) “Self-enhancement and Superiority Biases in Social Comparison”, European

Review of Social Psychology, 4 (1), pp. 113–139.

Knight, K.G. and Latreille, P.L. (2001) “Gender Effects in British Unfair Dismissal Tribunal Hearings”,

Industrial and Labor Relations Review, 54(4), pp. 816-834 .

Latreille, P.L. (2007) “Further Reflections on Images in the Adversarial Mirror: Some Historical

Matched Sample Evidence”, Swansea University Economics Working Paper, No. SBE-E/2007/10.

Peters, M., Seeds, K., Harding, C. and Garnett, E. (2010) “Findings from the Survey of Employment

Tribunal Applications 2008”, Department for Business, Innovation & Skills Employment Relations

Research Series, No. 107.

Review Body on Senior Salaries (2011) Thirty-Third Report on Senior Salaries, Office of Manpower

Economics, Cm 8026, London: HMSO.

Tribunals Service (2010) “Statistics of the Employment Tribunal Members Selection and

Recommendations for Appointment Exercise, Showing Diversity, Held Across Great Britain from

August 2009 to February 2010”, Tribunals Service Statistical Bulletin.

http://www.nrgplc.com/download/dti_case_study.pdf

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