Thursday, 17 May 2012

Fight for the Industrial Jury...

The Court of Appeal resisted the temptation to interfere with an Employment Tribunal's judgment because it thought better to trust to the:

the commonsense, practical experience and sense of justice of the ET sitting as an industrial jury.

Gover and others v Propertycare Ltd [2006] EWCA Civ 286 per Buxton LJ

It seems that HMG does not want litigants enjoying the expensive luxury of being judged by that jury and on 6th April the right to trial by the industrial jury was removed in unfair dismissal cases. These will now be heard by a judge alone and that judge alone will have a discretion to order trial by jury having regard to these matters [sub-section 1 is jury; subsection 2 - judge alone]:

(a) whether there is a likelihood of a dispute arising on the facts which makes it desirable for the proceedings to be heard in accordance with subsection (1),

(b) whether there is a likelihood of an issue of law arising which would make it desirable for the proceedings to be heard in accordance with subsection (2),

(c) any views of any of the parties as to whether or not the proceedings ought to be heard in accordance with either of those subsections, and

(d) whether there are other proceedings which might be heard concurrently but which are not proceedings specified in subsection (3),
I urge all practitioners to make the views of their clients known under (c). The delicious result of procuring justice for your client by a majority decision of the lay members of the Tribunal over the battled hardened single vote of the Employment Judge is a reminder that the courts and tribunals of England and Wales are concerned with justice and not only with law.  Last night I watched the new episode of Silk - full of the usual procedural and professional inaccuracies and outrages but it did show a jury rejecting the legal directions of a judge and exercising their constitutional freedom to do as they please in the provision of justice.  The cause of action is unfair not unlawful dismissal - the industrial jury should judge what is fair or not; not a lawyer of 5 years or more standing who has not worked on the shop or office floor; who does not know what the jury knows....

As Browne-Wilkinson P held in the EAT in the landmark case of Iceland Foods v Jones

the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.

Keep applying for trial by industrial jury!   It is what your client deserves......

Lord Steyn said in R v Conner (albeit in the criminal context):

Lord Devlin observed "that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives": Trial by Jury, (1956), p 164. This was a reference to the candles that were lit in London in the windows of London houses following the acquittal of the seven Bishops in 1688: see Macaulay, The History of England from the Accession of James II, (1849) vol 2, at p 389.The jury is an integral and indispensable part of the criminal justice system. The system of trial by judge and jury is of constitutional significance. The jury is also, through its collective decision-making, an excellent fact finder. Not surprisingly, the public trust juries. 

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