Specialists labouring in vain

Britain needs a specialist labour court to make full use of senior employment counsel's expertise once they have become judges, argues Colin Sara

Most countries in Europe have a labour court.

In Germany there is a complete structure ranging from major industrial disputes to minor individual claims.

In the Nordic countries, the labour court deals only with major disputes.

The president of the labour court is a high-profile figure, ready to deal with disputes promptly as they arise.

In Israel, which has a similar judicial system to our own, dating from the Palestine Protectorate, there is a strong and separate labour court dealing with collective and individual employment issues.

The UK system has developed piecemeal.

Employment tribunals deal with individual disputes, many of which have a collective element - for example, when a company has failed to consult the workforce on multiple redundancies or transfer of undertakings - but employment tribunals cannot grant injunctions and do not deal with the legal effects of major industrial disputes.

In other areas, such as breach of contract and discrimination, their jurisdiction has been extended.

The Employment Appeal Tribunal (EAT) deals with appeals from employment tribunals.

It has a president, a High Court judge appointed for three years, one permanent circuit judge and High Court and circuit judges on temporary assignment.

Its weakness is the temporary nature of appointments and the presence of a significant number of non-specialists.

It has limited direct - as opposed to appellate - jurisdiction.

This means that major industrial litigation goes to the High Court, where it may be assigned to any High Court judge and where there are few employment law specialists.

This country has an embryonic labour court in the form of the EAT and the employment tribunals.

The essential features are:l A tripartite structure, with a judge as chairman sitting with lay members appointed from the two side of industry.

This applies in employment tribunals and the EAT.

It is a crucial feature of labour courts worldwide, as it ensures that the chairman's legal expertise is overlaid by experience of industry and commerce.l An employment tribunals system independent of government and separate from the courts.

The system is speedy and informal, with no wigs and gowns, and parties encouraged to appear in person.

The structure of these two courts gives scope for development of a labour court which could:l Hear all employment cases, including those which presently go before the High Court;l Have a cadre of permanent judges, with a president, a group of senior judges and the present substantial number of employment tribunal chairmen, and;l Sit either as a full court, or as an appellate chamber give final decisions with appeals only to the House of Lords.We have a group of specialist employment lawyers in the solicitors' profession and at the Bar.

The Lord Chancellor was primarily an employment silk and the Prime Minister practised briefly at the employment bar.

Every large firm of solicitors has an employment department headed by a partner.

Yet at the highest level, there is little scope for transfer to the judiciary without becoming a generalist.

A labour court, with a full complement of judges at the appropriate level, would allow practitioners to move into the system at any level.

This would ensure greater consistency and a move away from a shackled common-law approach.

A high-profile president would be able to deal promptly and authoritatively with major issues.

These proposals would not mean a complete change, because they could be built onto the existing structure, but they should leave the judicial structure better able to deal with the challenges of future labour law issues.

Colin Sara is secretary-general of the European Association of Labour Court Judges