The Role of Lay Members/Non-legal Members as Judges in Employment Rights Cases
Submitting InstitutionUniversity of Greenwich
Unit of AssessmentBusiness and Management Studies
Summary Impact TypeLegal
Research Subject Area(s)
Law and Legal Studies: Law
Summary of the impact
Employment Tribunals and the Employment Appeal Tribunal can be
constituted by a professional judge sitting alone or by a professional
judge with lay members depending primarily on the type of complaint. In
2011 the government proposed to limit dramatically the type of complaint
where lay members could sit. This research provided empirical, timely
evidence on the positive contribution that lay members make to the
adjudicatory process. It provided an evidential basis for a keen public
policy debate, was used by stakeholders responding to the government's
proposal and was cited by the Minister and his shadow in the parliamentary
This research, conducted in 2010-2011, investigated the role of lay
members in British employment tribunals (ETs) and the Employment Appeal
Tribunal (EAT) and whether and how they added value. It was led by Susan
Corby, Professor of Employment Relations, University of Greenwich
(UoG) and supported by Professor Paul Latreille, Swansea University and
Pete Burgess, research fellow (UoG). A mixed methods approach was adopted:
questionnaire surveys, interviews, desk research and a statistical
analysis of administrative data and judgments. Four questionnaires were
sent to ET judges (424), ET lay members (1,783), EAT judges (20) and EAT
lay members (53). This was a census, not a sample, and response rates were
high, ranging from 45 per cent (ET judges) to 80 per cent (EAT judges).
Twenty interviews were held with both legally qualified and lay
representatives and with senior people in user organisations. In addition,
EAT administrative data on 4,800 appeals was analysed to ascertain if the
court's composition influenced outcome, while desk research was conducted
on labour courts outside Britain for comparative purposes.
The surveys broadly endorsed the role of lay members and considered that
they added value.
Specifically they found:
- Lay members' main contribution derived from their provision of
workplace experience, which the professional judges did not have, and
their injection of a practitioner perspective which balanced judges'
- High percentages of both ET lay members and judges (100% and 80%
respectively) assessed unfair dismissal as a jurisdiction where lay
members added value to decision making, despite a government proposal to
enable judges to sit alone in unfair dismissal cases.
- Few judges or lay members assessed lay members' contribution in terms
of the lowest score on a 1 to 4 scale; the mean score of ET judges was
2.36 and the mean score of EAT judges 2.64.
- Respondents broadly agreed that a three person tribunal was likely to
have greater legitimacy for the parties than a judge alone.
Most interviewees said they valued the presence of lay members on ETs
because they were able to reassure parties that two out of the three
people deciding their case had workplace experience and it would not just
be a lawyer who would be making decisions. As to the EAT, interviewees had
mixed views. Some considered that lay members were otiose as the EAT only
determines points of law; others held a contra-view while some
interviewees were equivocal.
Controlling for case characteristics, analysis of EAT data indicated that
employee appellants have a significantly better chance of success when a
decision is made by a judge sitting alone, rather than a judge with lay
Comparative research indicated differences between Great Britain (GB) and
continental Europe. First, there has been self-nomination of lay judges in
GB since 1999, replacing nomination by trade union and employer
organisations as occurs in continental European labour courts. Second, in
GB self-nominees are assessed by formal selection processes. Elsewhere the
social partners informally check nominees' credentials. Third, governments
elsewhere, unlike GB's, have not questioned the role of lay members.
References to the research
(REF1 submitted staff in bold,**REF2 Output)
3.2 Urwin, P., Buscha, F., & Latreille, P. L. (2013). Representation
in UK Employment Tribunals: Analysis of the 2003 and 2008 Survey of
Employment Tribunal Applications (SETA). British Journal of Industrial
Relations, 51(2). http://dx.doi.org/10.1111/j.1467-8543.2012.00914.x
3.3 Morris, G. (2012) The Development of Statutory Employment Rights in
Britain and Enforcement Mechanisms. In L. Dickens. Making Employment
Rights Effective: Issues of Enforcement and Compliance (pp. 7-28).
Oxford: Hart Publishing.
The grant was awarded to Susan Corby for research entitled The
role of lay/non-legal members in employment rights cases, by the
Economic and Social Research Council (ESRC), 1 October 2010 to 30
September 2011, RES 000-22-4154. The value (FEC) was £99,000. An impact
report was drawn up for the ESRC. The research was graded `very good'
by the ESRC in a letter issued 14.5.2013.
Further scholarly work is to be published soon:
Burgess, P., Corby, S., and Latreille, P. (2014) `Lay judges and labour
courts: a question of legitimacy' Comparative Labor Law and Policy
Corby, S. and Burgess, P. (2014) Adjudicating Employment Rights a
cross national approach, Basingstoke: Palgrave Macmillan.
Details of the impact
Employment Tribunals (ETs), originally known as Industrial Tribunals,
have been determining disputes between employers and workers for almost 50
years. Cases include unfair dismissal, discrimination, wages and working
hours. The Employment Appeal Tribunal (EAT) hears appeals on decisions
made by ETs on points of law only. ETs and the EAT were originally
tripartite: a professional judge with two lay members, one representing
employers and the other representing workers. Since 1994, successive
governments have been incrementally limiting the types of cases on which
lay members are legally required to sit. It was in this context that Susan
Corby decided to research whether and how lay members add value. While the
project was still at an early stage in 2011, the government announced its
proposal for the biggest and most controversial limitation yet - the
default exclusion of lay members from adjudicating unfair dismissal cases
and from all cases at the EAT. These government proposals were without a
basis in empirical evidence.
The research therefore not only generated a fresh understanding of these
important labour market institutions in Great Britain, and widespread
interest from policy makers, practitioners and the general public; it also
provided empirical evidence which informed responses to the government's
consultation on its proposals, the surrounding debate, and the
government's own understanding.
The impacts are presented by audience:
Department of Business, Innovation and Skills (BIS)
The research is acknowledged in the government's document responding to
its proposals, Resolving Workplace Disputes, Despite the
research's findings, the government implemented its proposed reduction in
the use of lay members in unfair dismissal cases in April 2012.
Nevertheless, it said:
We will use the research to evaluate the findings of the first year of
operation, once judges have begun to sit alone in more cases, to see
whether a reversal or extension of the policy is necessary. (BIS,
House of Commons General Committee
13.3.2012 Debate: There were several references to the research, when
Parliament was debating the statutory instrument removing employment
tribunal lay members from unfair dismissal cases, by Norman Lamb M.P.
(Minister for Employment Relations in 2012), and Ian Murray M.P. (shadow
minister). Normal Lamb, who introduced the order, acknowledged the
findings: he was aware that they supported the continuation of lay members
on unfair dismissal cases, but justified the proposals on the grounds of
Advisory, Conciliation and Arbitration Service (ACAS)
ACAS in its response to the Government's consultation exercise asked it
to stay its hand in order to consider fully the research`s findings.
a) The Employment Lawyers' Association, which has nearly 6,000
members, publishes a regular newsletter. In November 2011, it published a
500-word piece summarising the questionnaires' findings.
b) Incomes Data Services (IDS) publishes a twice monthly journal,
Employment Law Brief, taken by employers, trade unions, government
departments, lawyers and the judiciary. Each issue has an introductory
page commenting on a current issue. The December issue page 1,
entitled `The importance - or not - of lay members', was devoted to
describing the context and findings from the surveys which it said
provided `a unique insight'. Beforehand IDS's email alert had drawn
attention to the research, reporting it briefly.
c) Michael Rubenstein, editor of Industrial Relations Law Reports,
publishes a blog, which reported the results of the EAT administrative
data analysis, including the finding that the increase in success rates is
more pronounced for employee-instigated appeals than for
d) New Law Journal which is read by lawyers and has 48 issues per
year reported the survey in its news section: "Lay employment tribunal
members add value according to study".
e) Bond Pearce (commercial law firm), which issues a newsletter
electronically, reported the survey's findings in November 2011. (Bond
Pearce merged with Dickinson Dees, adapting the latter's computer systems
so this newsletter no longer exists.)
f) Turbervilles solicitors, which issues a newsletter
electronically, reported the survey findings and said they were `very
g) Industrial Law Society London: 21 February 2012 - presentation
by Corby and Latreille to judges and legal and lay practitioners of
findings from the surveys and interviews.
h) Council of Tribunal Members Association: Birmingham 23 April
2012 - presentation by Corby and Latreille to lay members as above.
i) Seminar: University of Warwick 5 June 2013. Audience included
legal and mediation practitioners and a government representative;
presentation by Corby and Latreille on analysis of EAT administrative
BBC Radio 4 World at One 5.4.2012 included an interview with
Susan Corby about the default exclusion of lay members from unfair
Sources to corroborate the impact
a) Publications/reports (alphabetical order)
- ACAS, March 2012 - see p.22
- Department of Business Innovation and Skills (2011) Resolving
Workplace Disputes: Government Response to the Consultation,
London: BIS/HM Courts & Tribunal Service.
- Employment Law Association newsletter, 11 November 2011
- House of Commons General Committee debate: Draft Employment Tribunals
Act 1996 (Tribunal Composition) Order 2012, Column number 32:
- IDS Employment Law Brief, 938, December 2011.
- Michael Rubenstein blog:
- New Law Journal Issue 7492 1/12/2011
Turbervilles: (2011) HR and Employment Law Newsletter, 90, November p.3
- Employment Relations Advisor, Chartered Institute of Personnel and
- Senior Employment Rights Officer, Trades Union Congress (TUC) - (both