A Second-Rate Justice

David Renton, Struck Out: Why Employment Tribunals Fail Workers and What Can be Done

Pluto Press, 200pp, £19.99, ISBN 9780745332550

reviewed by Simon Behrman

Since the economic crisis hit in 2007 unemployment in the UK has risen by over a million. This has been accompanied by the coalition government’s threat to further deregulate employment law so as to make it easier to fire workers. Now, more than ever, workers are in need of every bit of protection available to them. For most people this includes the right of access to Employment Tribunals, which have the power to hold employers to account for unfair dismissals, discrimination at work and other workplace disputes.

At first blush it would appear that Tribunals are an effective means by which workers can achieve redress. Some 60% of all claims that get a full hearing are successful. But as David Renton explains in great detail in his latest book, this headline figure is seriously misleading. While claims for unpaid wages have a high chance of success, claims against the far more pernicious and common problem of discrimination are successful in but a small minority of cases. We read testimony from workers describing the trauma of the Tribunal process in which complex legal requirements and a culture loaded in favour of the employer often makes the claimant feel ill at ease. The length of time it takes for claims to be heard, and the often prohibitive cost of pursuing them compounds the feeling, as one claimant describes it, that workers are ‘fighting both the defendants and the Tribunal’. Moreover, only in the rarest of cases do workers actually get their job back. At best, they may recover some damages to offset loss of earnings and their legal costs. The many occasions on which Renton allows the voice of workers who have directly experienced the Tribunal process to be heard are valuable as well as moving.

Renton does more than simply expose the dead end that Employment Tribunals offer for claimants. First, he goes into great detail explaining the genesis of the Tribunal system and how they operate. This is then followed in turn by examinations of the failure of Tribunals to adequately address issues of agency workers, equal pay and racial discrimination. What we have here is both an excellent analysis of Employment Tribunals, and a guide for workers on the vagaries of the process. Renton is able to pick apart how the system works, and the complex law that governs it without either lapsing into unexplained obscure jargon or being boring. This is no mean feat in what is, in part at least, a legal handbook. Renton’s achievement in this respect is all the more impressive given that he is actually a lawyer specializing in employment law. This is not meant as a cheap shot at lawyers; rather it is an acknowledgement that when one is caught up in the legal system day-to-day it becomes extremely difficult to extricate oneself from its habits and language. It is for this reason that handbooks on law, even when they are addressed to the layperson, often remain obscure or just simply unreadable. Academic lawyers, on the other hand, are usually able to offer much more interesting and critical approaches to various areas of the law. Yet their grasp on the realities of what it is like to actually experience the legal process is often shaky. This has led to a schism in legal literature between the practicing lawyers and their ivory tower counterparts, each failing to learn from the other. One of the real strengths of this book is that Renton is able to straddle both approaches to law, offering a guide based on practical experience of Employment Tribunals, while maintaining a historical and critical approach throughout.

While Renton concludes his book with ideas for how the Tribunal system could be reformed to achieve a more just results for workers his critique of Employment Tribunals is not merely that they operate with certain procedural imbalances, which could be remedied in this or that way. He demonstrates convincingly that the Tribunals were created specifically to undercut the role of collective bargaining and wildcat strikes in challenging inequalities and victimisations at work, a major factor of industrial relations in the 1950s and 1960s. The key figure in this respect was Otto Kahn-Freund, an eminent employment lawyer of the mid-20th century. An irony here, which Renton however fails to mention, is that Kahn-Freund had earlier argued for what was known as ‘collective laissez-faire’, the argument that the state should not have a role in industrial disputes, leaving the right of workers to self-organise as the necessary counterbalance to the power of the employer. Kahn-Freund characterized this approach as ‘the retreat of the law from industrial relations and of industrial relations from the law’. Instead, as Renton shows, the development of Employment Tribunals has led to the increased juridification of industrial relations to the detriment of workers.

One reason that Renton identifies for why the intervention of the law in industrial relations has had such a negative impact has to do with the way in which the law forces all claims to be made on an individual basis. This has the effect of isolating the worker in the face of the overweening power of the employer, a point made by Kahn-Freund in his theory of ‘collective laissez-faire’. This then leads to the tendency for less emphasis on collective bargaining in the workplace in favour of individual lawsuits. But Renton is careful not to fall into what would be an empiricist trap of seeing the decline of union power as a function of the rise of the increased juridification of industrial relations. This assumes too great an influence of legal ideology, but equally a failure to understand why workers would turn away from collective bargaining in the first place, given its evident benefits for them during the post-war period. Renton is clear that it was the severe defeats in the industrial sphere culminating in the Miners’ Strike of 1984-5 that transformed the balance of power between employers and unions. The point is that with these defeats over the last 30 years workers have increasingly seen a viable route to workplace justice through the Tribunal system, rather than through the union activity.

So while it is not the case that Employment Tribunals are responsible per se for the weakening of the ability of employees to fight discrimination and unfair dismissal at work, equally the increasing turn to Tribunals as a method for seeking workplace justice is erroneous at best, and regressive and demoralising at worst. The solution, as Renton argues, would be for ‘workers and unions to take these conflicts out of the legal sphere and to return them to the sphere of collective bargaining’. It is certainly refreshing to read a lawyer so lacking in preciousness about the role of his own profession.

I do, however, have one serious disagreement with Renton’s analysis, which I think has the potential to undermine his own argument against the juridification of industrial relations. He devotes a chapter to arguing that the common law tradition is particularly egregious in relation to workplace justice. The reasons he offers are that the common law privileges property rights, and hence is biased towards employers, that it places too much power in the hands of judges whose social and class background often renders them hostile to workers, and through the principle of judicial precedent enshrines decisions often dating back to a far more conservative period. The implication, although Renton nowhere spells this out, is that a better alternative would be a turn to the civil law tradition, which prevails in most European countries and is an important ingredient within the US legal system.

I am not convinced that these legal systems are any more inherently just than the common law. It is certainly not the case that they are less biased towards property rights. Indeed, most of them have such rights enshrined in their constitutions or civil code, which is not the case in English law. Moreover, one of the benefits of the common law system is its malleability. This means, as Renton points out, that the judiciary are often given space to make law based on little more than their own prejudices. Nevertheless, the idea that investigating magistrates in France or Spain are significantly less able to exercise their own biases cannot be sustained. On the other hand, the relative flexibility of the common law allows pressure more easily to be brought to bear from outside the law to achieve change, a process that is often much harder in countries where altering the constitution or the civil code is a laborious and lengthy process. It is at least arguable, therefore, that the common law offers a far less juridified set-up than that of civil law. While I hold no brief for the common law, the argument that rights enshrined in a constitution in themselves offer greater equality is a liberal fiction that in practice serves only to obscure the existing gross inequalities that exist in society.

However, notwithstanding my disagreement over this last point, I think that this book is a valuable guide to any worker, and especially to trade union activists on the realities of challenging attacks by employers. It is also a necessary corrective to the idea that the route to justice in the workplace runs through the courts rather than through workers’ own collective activity.