Philip Tsamados reflects on three decades of covering employment law developments.
I am honoured to have been asked to contribute an article in celebration of LAG’s 50th anniversary. I had not appreciated that it has been in existence for so long – that is, until I realised that I have been writing employment law updates for Legal Action for almost 30 years!
The first update appeared in November 1993 (see left). It was entitled ‘Employment law: practice guidance and trends’ and I co-authored it with my then Central London Law Centre colleague, Tamara Lewis (whose relationship with LAG continues, with
Employment Law: an adviser’s handbook now in its
14th edition). We continued to write six-monthly, and at times quarterly, updates together until the end of 2011 (with Tamara continuing to contribute separately until 2012).
It was originally described as ‘a six-monthly update on employment and discrimination law and practice, designed to keep practitioners informed on all the latest developments’. I have continued to keep that aim in mind. I write about things I would want to know as a practitioner, in a way that is both of interest to and written for lawyers and advice workers, bringing together information about legislative and procedural changes, new appeal cases and articles of interest in summary form. It is fair to say that employment protections have extended over the years, much of which has happened as a result of European legislation.
The first update was of particular note because it reported the then newly enacted automatic unfair dismissal protections in cases of dismissal for asserting a statutory right, health and safety reasons, and pregnancy or maternity reasons, as well as the introduction of compromise agreements (now called settlement agreements). At that time, employment tribunals were called industrial tribunals, employment judges were chairs, an ET1 was an IT1 and claimants were applicants. Employment tribunal procedure was relatively sophisticated and complicated even then, but it is more so now, and it is more difficult for unrepresented claimants to access and to participate in. Arguably, the internet has led to wider access to advice and information (although not all of it is reliable or accurate); however, sources of face-to-face advice and assistance are now more limited.
In the past, an applicant could issue a claim in the industrial tribunal without having to go through any prior process and without paying a fee. Over the years, prior processes have been introduced (the statutory disciplinary and grievance procedures), abolished and then alternative prior processes applied in their place (early conciliation). Claims were free to bring, then there were fees, and then those fees were abolished.
I have perused my copies of the updates from 1993 onwards, some of which are in an old A4 folder and exist on paper only, and others that exist electronically. I have picked out some of the interesting changes that have occurred over the years. I mean no disrespect to anyone or anything I have left out, but there is so much to choose from.
The extension of the tribunal’s jurisdiction to deal with damages for breach of contract arising from or outstanding on termination of an employee’s employment (November 1994 Legal Action 10) arose from the House of Lords’ judgment in Delaney v Staples (t/a De Montfort Recruitment) [1992] IRLR 19. This determined that most types of notice pay did not fall within the definition of wages for the purposes of an unauthorised deduction from wages claim under the Wages Act 1986 (now Employment Rights Act 1996 Part II), unless the worker was working out their notice or was treated as doing so. Unfortunately, the decision left workers with a split jurisdiction, having to pursue claims for wages in the tribunal (which was free) and notice pay in the county court or High Court (which was not). The House of Lords recognised its decision created ‘an untidy and unsatisfactory result’, and urged the government to extend the tribunal’s jurisdiction to deal with claims for breach of contract.
The Employment Rights Act 1996 and the Employment Tribunals Act 1996 (November 1995 Legal Action 11) consolidated existing employment legislation. We described this at the time as appearing to have ‘little point’ and noted that ‘the detrimental effect is that most of the section numbers advisers are all familiar with will change’!
The Working Time Regulations 1998 SI No 1833, derived from the Working Time Directive (
Council Directive 93/104/EC), established the 48-hour working week, entitlement to paid annual leave and to breaks during the working day (November 1998
Legal Action 10).
The Human Rights Act 1998 (May 1999
Legal Action 10; see also November 2000
Legal Action 24) incorporated the
European Convention on Human Rights into domestic legislation and, where appropriate, the way in which the employment tribunal operated its procedure and determined decisions.
Vento v Chief Constable of West Yorkshire Police (No 2) [2002] EWCA Civ 1871 (May 2003
Legal Action 21) established the banded levels of award for injury to feelings in discrimination cases.
Igen Ltd and others v Wong; Chamberlin Solicitors and another v Emokpae; Brunel University v Webster and others [2005] IRLR 258 (May 2005
Legal Action 25) set out guidelines for the application of the burden of proof in discrimination cases.
The ability to enforce certain employment tribunal awards and Acas (Advisory, Conciliation and Arbitration Service) settlements using a fast-track High Court enforcement officers procedure, which, it was hoped, would make enforcement of awards more effective, was reported in May 2010
Legal Action 10.
The introduction of employment tribunal fees (September 2013
Legal Action 14) saw a resulting decline in claims (September 2014
Legal Action 37). The fees were abolished following the Supreme Court judgment in
R (Unison) v Lord Chancellor [2017] UKSC 51; September 2017
Legal Action 39 (see also September 2017
Legal Action 8 and
9). This resulted in increases in the number of claims (September 2018
Legal Action 30, March 2020
Legal Action 14 and March 2021
Legal Action 37).
Most recently, the employment tribunals, along with the courts, have had to adapt to the new normal following the outbreak of the COVID-19 pandemic. This has led to changes in the way employment tribunals operate, with the increased use of telephone and in particular video hearings and issuing of guidance by the presidents of the employment tribunals in England and Wales and in Scotland and what is called a ‘road map’ for employment tribunals (September 2020
Legal Action 43, April 2021
Legal Action 32 and October 2021
Legal Action 26). This in turn has led to an increase in the use of electronic documentation as opposed to paper bundles and witness statements.
Appeal cases arising from COVID-19 claims are now beginning to come through the Employment Appeal Tribunal system and are likely to involve dismissals during lockdown and health and safety issues around coming to work (see
page 40 of this issue).
No doubt the future will see an increase in the use of alternatives to face-to-face hearings and paperless proceedings. Given that not everyone has access to high-speed broadband and sophisticated computer equipment and software, whether this is a move for the better remains to be seen.
Employment protection has certainly increased over the past 30 years, and employment tribunal claims are more numerous and the tribunals themselves more sophisticated in terms of process and adjudication. The downside is that waiting times for hearings have increased, which, of course, impacts on the right to access to justice.
Here’s to another 50 years of LAG seeking to improve access to justice through its campaign work and training, and through the provision of authoritative and up to date information through Legal Action and its books.
Happy 50th FRU!
This year also sees the 50th anniversary of the Free Representation Unit (FRU), which began at the end of 1972. It continues to provide free legal representation in employment and social security cases (as well as some criminal injuries compensation tribunal cases) referred to it by a large number of referral agencies. For more information, visit
the FRU website.
LAG would like to thank Philip and Tamara for their huge commitment to LAG over so many years, sharing their experience and knowledge of employment law to improve access to justice. We also thank all the other authors (both Legal Action and books (see, for example, two other classic LAG books, left)) and trainers who have given of their time and expertise over LAG’s half-century to improve the lot of employees and workers. We appreciate you all enormously!