Universities and Trade Unions

It has become the case that over the course of the 20th century an ever-increasing number of tribunals have come into existence alongside the ordinary civil courts, dealing with a wide variety of disputes, usually between the citizen and the state. Although tribunals do not adjudicate in all civil matters, some family law matters in particular, they are considered to provide an informal and relatively inexpensive mechanism for the resolution of disputes.

The vast numbers of tribunals and their importance have increased so significantly that it is no longer justifiable to regard them merely as an appendage to the ordinary courts of law, to ease the pressure off them, but rather as an integral part of the English Legal System.

The history of tribunals can be traced back to the late 18th century, such as the General Commissioners of Income Tax, but the vast majority are the creation of the 20th century, reflecting the increasing involvement of the state in the lives of its citizens, and the pressing need to provide a specialist forum to deal with cases involving conflicts between an interventionist Welfare State, its functionaries and the rights of private citizens.

There has been considerable concern about the use of tribunals as a mechanism for the resolution of disputes, particularly as it was argued that only courts had the constitutional authority to perform this function. One such vehement critic being the then Lord Chief Justice, Lord Hewart, in the 1929 publication of his famous polemic, The New Despotism.

The Committee on Minister's Powers, however, reported in 1932 that in their view, and subject to safeguards, tribunals were a necessary if not desirable part of the fabric of the English Justice System. In 1955 a further committee under Sir Oliver Franks was established to review tribunals and enquiries, in the wake of the Crichel Down affair, where a piece of land had been compulsorily acquired by a government department, and when it was no longer required, various civil servants then frustrated the attempts of the former owner to repurchase it.

Published in 1957, the report accepted that subject to basic principles of openness, requiring where possible the publicity of proceedings and knowledge of the essential reasoning underlying the decisions; fairness in requiring the adoption of a clear procedure which enables parties to know their rights, to present their case fully and to know the case which they have to meet; impartiality, to require the freedom of tribunals from the influence of government departments concerned with the subject matter of their decisions, tribunals should be accepted as an important part of the adjudicative structure.

The position of tribunals is likely to become even more secure following the enactment of the Human Rights Act 1998, since Article 6 of the European Convention of Human Rights requires the existence of tribunals to determine a person's civil rights.

Thus as an alternative to the court system a large number of tribunals have been set up under various Acts of Parliament to rule on the operation of the particular schemes of those Acts, while others were developed because certain organisations have discovered the need for a forum in which complaints about members can be aired, and where, if necessary, members can be sanctioned for infringing the rules.

Almost one million cases are dealt with by tribunals each year, and the Royal Commission on Legal Services pointed out in 1979, that the number of cases then being heard by tribunals was six times greater than the number of contested civil cases dealt with by the High Court and the County Court combined. Tribunals are, however, regarded as inferior to the ordinary courts even though they are largely independent in their own jurisdictions. This was confirmed in the case of Peach Grey v Sommers (1995) which concerned a claim of wrongful dismissal against a firm of solicitors heard by an industrial tribunal.

The person dismissed had tried to influence a witness due to appear before the tribunal, and his former employers claimed that this was contempt of court. The Divisional Court agreed and in accepting that it had jurisdiction to punish the contempt, it confirmed that the tribunal is inferior to the courts. There are currently at least eighty different tribunal systems in existence, which come in a bewildering variety of forms. For such a diverse range of quasi-judicial bodies, most legal commentators generally draw a distinction between administrative tribunals, employment tribunals and domestic tribunals.

Administrative tribunals were established by statute in response to a perceived need to have a review process that is quite separate from and independent of government. There are nearly seventy of these tribunals whose function it is to deal quickly and cheaply with grievances against government department and other agencies of the state. For the most part, the procedure in these administrative tribunals is far less formal than in the ordinary courts, for which reason individuals were originally expected to do without legal representation, and may still choose to do so.

If an administrative tribunal makes an error of law, the statute that created it may provide for a specific right of appeal to the High Court, which may entertain a claim for judicial review if this is advantageous to the complainant. Though one of the main purposes of the tribunal system is to prevent the ordinary courts from being overburdened by cases, a tribunal is still subject to judicial review on the basis of a breach of natural justice, or where it acts in an ultra vires manner, or where it goes wrong in relation to the application of the law when deciding cases.

Where a judge is satisfied with the substance of a claim he can make a quashing order which nullifies the earlier decision; a mandatory order will require a tribunal to rehear a case; a prohibiting order can also be made by the Administrative Court to prevent a tribunal from exceeding its jurisdiction, and it can also be used to prevent a tribunal from ignoring the principles of natural justice when hearing a case.

Employment tribunals were originally established as industrial tribunals with a somewhat limited role by the Industrial Training Act 1964, since when their jurisdiction has extended considerably, notably under the employment legislation of the 1960s and 70s. Their composition, jurisdiction and procedure are now regulated by the Employment Relations Act 1999. Employment tribunals now have the power to determine over fifty different types of complaint arising from the employment relationship.

They are supported by the Employment Tribunals Service, which is an executive agency of the Department of Trade and Industry, and operates from 34 permanent offices across Britain to accommodate the needs of employers and employees. Appeals from the decisions of employment tribunals go straight to the Employment Appeal Tribunal (EAT) presided over by a High Court judge, which was established by the Employment Protection Act 1975, but is now governed by the Industrial Tribunals Act 1999.

Appeals are restricted to points of law, as was confirmed by the Court of Appeal (CA) in British Telecommunications v Sheridan (1990). Unless the tribunal decision was made by the chairperson sitting alone, the presiding judge in the EAT will sit with two laypersons who can outvote him in deciding the appeal.

In the Post Office v Lewis (1997), the CA made it clear that where the decision of an employment tribunal was neither perverse nor affected by an error of law, it was not permissible for the EAT to interfere on the basis that the tribunal had failed to refer in its decision to the main part of the applicants defence. A further appeal on a point of law from the decision of the EAT to the CA is possible with the permission of that court, and occasionally to the House of Lords also.

Domestic tribunals are generally those that are not classed as administrative tribunals or employment tribunals. Some domestic tribunals are created by statute and others are not, and relate to matters from disciplinary and grievances committees at the workplace to the disciplinary committees established by organisations such as the Law Society, Bar Council and Chartered Association of Certified Accountants. Universities and Trade Unions too have disciplinary bodies that decide whether a member should be disciplined if an allegation of an infringement of the rules is established.