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Better than the law of averages

Union members have more chance of winning higher sums at an industrial tribunal. But officials say such casework can pose major problems. David Budge reports

Teachers who feel they have been unfairly dismissed should not expect to make a fortune by taking their grievance to an industrial tribunal. Those who lodge a claim through a union rather than proceed with a private action are, however, less likely to end up with an insultingly small settlement.

Statistics compiled by the Labour Research Department indicate that tribunal awards to union members are up to 50 per cent higher than those obtained by individuals who acted on their own behalf.

The LRD, which surveyed 28 unions, found that union members could expect to collect an extra Pounds 2,000 for race discrimination, Pounds 700 for unfair dismissal and Pounds 600 for sex discrimination.

The average awards that unions obtained for their members during the first six months of this year were: unfair dismissal, Pounds 3,541; redundancy, Pounds 6,150; equal pay, Pounds 3,750; other sex discrimination Pounds 3,642; race discrimination, Pounds 5,428; Wages Act, Pounds 1,225, and breach of contract, Pounds 263.

The LRD did not break down these figures by occupation but one teacher union that took part in the survey is known to have achieved an average of Pounds 5,000 from 12 unfair dismissal cases.

Its figures for redundancy claims (Pounds 4,225), equal pay (Pounds 2,500) and other sex discrimination (Pounds 3,571) were, however, less impressive.

The figures may be a little misleading because they were based on extremely small samples, but there is no doubt that the average settlement is very low.

Martin Fisher, one of the National Union of Teachers' North-east regional officials, said: "The problem is that the tribunals' scale of awards isn't high enough (see box below). In any case, it's quite rare for the maximum to be awarded.

"As a result, employers must think that the Pounds 3,000-Pounds 4,000 they may have to pay out at a tribunal isn't much to get rid of a troublesome employee. It's time there was a stiffer deterrent to make them think harder about whether they should get rid of people."

The NUT's headquarters keeps surprisingly little data on the industrial tribunal cases handled by its 10 regional offices, but Graham Clayton, the union's senior solicitor, estimates that the union has won more than Pounds 1 million for members involved in personal injury and IT cases in the past year.

"The union wins 85 per cent of the 30 or so cases we take to a tribunal each year," he said. "But perhaps another 120 are settled out of court.

"There's no question that union members have an advantage because employment law is becoming increasingly complex and many cases now hinge on technical, legal points.

"The straightforward cases are becoming rarer because most employers operate fairer procedures. In that sense the law has been successful."

Graham Clayton is, however, less complimentary about the education legislation that has made it impossible to determine whether school governing bodies or local education authorities are teachers' employers. "The two-employers problem makes for very complex law," he said. "Seven years on we're still in the bizarre situation where every claim for unfair dismissal is made against both the LEA and governing body and both have to be legally represented in the tribunal."

NATFHE, the lecturers' union, does not have to contend with that anomaly, but tribunal work poses it major problems nevertheless. It is representing no fewer than 1,700 part-timers seeking compensation for being denied membership of the Teachers' Superannuation Scheme. There has been an increase in other types of tribunal cases, too, because of the upsurge of redundancies and the dismissal of part-timers. And colleges' attempts to change lecturers' contracts have also generated a large amount of casework.

NATFHE draws consolation from the fact that it has won Pounds 100,000 in compensation for part-timers involved in unfair dismissal and redundancy cases since the House of Lords relaxed the restrictions on such claims last year. But, like other unions, it pays a high price for such success.

"Each case that goes to a tribunal costs us perhaps Pounds 3,000 to Pounds 5,000," one of the union's officers admitted.

The unions make no complaints about the cost, recognising that tribunal casework is one of their core roles, but they clearly have serious misgivings about the present system.

"The quality of tribunals is tremendously variable," one union solicitor said.

"Some are excellent but others are appalling. Invariably, cases are heard by a barrister and two lay 'wingers', but the barristers don't even need to have 10 years of experience of employment law. They might be experts in consumer law or even conveyancing. There is definitely room for improvement."

* The maximum awards that an industrial tribunal can order are relatively low because compensation is currently based on a notional weekly pay of Pounds 210.

This figure, which keeps pace with inflation, is used to calculate redundancy payments, basic compensation awards for unfair dismissal, and the additional award made when a company fails to comply with an order to reinstate an employee.

The maximum unfair dismissal award was increased from Pounds 11,000 to Pounds 11,300 at the end of September. There is no upper limit for sex discrimination cases.

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