Date of release: Tuesday, June 25, 2013

Professor Susan CorbyAppellants have a better chance of success at an Employment Appeal Tribunal (EAT) when a decision is made by a judge sitting alone, according to research from the universities of Greenwich and Sheffield.

Success is less likely when a judge sits with lay members, but the increase in success rates is more pronounced for employee-instigated appeals than for employer-instigated appeals.

For appeals brought by employers, this difference essentially disappears when other factors such as the nature of the appeal, the balance of legal representation and counsel, the number of appellants and respondents, whether there were preliminary or Rule 3.10 hearings, and case complexity (proxied by the scheduled length of the hearing), are taken into account. For employee appeals however, the difference in outcomes according to EAT composition remains significant when controlling for these other case characteristics.

These are key findings of research, carried out by Susan Corby, Professor of Employment Relations at the University of Greenwich, and Paul Latreille, Professor of Management at the University of Sheffield.

Professor Corby says: “The British Chamber of Commerce (BCC) has said that lay members are unnecessary in the Tribunal system. The Enterprise and Regulatory Reform Act implements this today (Tuesday 25 June) when the default position will be judges sitting alone at the EAT. This research suggests that this change may lead to BCC members losing more appeals than before.

“An appeal against a decision of an Employment Tribunal can be made to the Employment Appeal Tribunal (EAT) on a point of law. An appeal is normally decided either by a judge sitting alone, or by a judge sitting with two lay members - one from an employer panel and the other from an employee panel - and all three have equal votes. Essentially, if it is judge sitting alone at the Employment Tribunal below, the EAT hearing is judge sitting alone as well, although this is subject to judicial discretion.”

Notes:

The research was funded by the Economic and Social Research Council, and is based on an analysis of EAT administrative data for 4,800 appeals heard from 2001 to 2011 inclusive.

The Economic and Social Research Council is the UK's largest organisation for funding research on economic and social issues. It supports independent, high quality research which has an impact on business, the public sector and the third sector. The ESRC’s total budget for 2012/13 is £205 million. At any one time the ESRC supports over 4,000 researchers and postgraduate students in academic institutions and independent research institutes.

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