The Employment Tribunal Archive – an overview

The news that the Ministry of Justice was proposing to shred all but the last six years of the Employment Tribunal Archive was not entirely unexpected. While in theory all decisions are publicly available, in practice they are so difficult to access that the Archive is little used and is easy to overlook.  Thanks to the intervention of the University of Derby, which has offered to house the many thousands of decisions, the Archive looks likely to be saved, and I for one will be very grateful, for I know from my own experience that this is a tremendously important resource for anyone interested in the history of working women.

The Archive dates back to the beginning of the tribunal system and until now has been housed in the Registry of Judgments at Bury St Edmunds. Case decisions are in date order and filed by name only;  there is no indication of jurisdiction: redundancy, unfair dismissal, or sex discrimination for example. The only way to access information about their content has been to sit in the Tribunal Office at Bury St Edmunds for weeks on end reading every single decision. I remember commissioning a researcher to exaine early cases of pregnancy dismissal. We were shocked to discover that in order to find two years decisions relating to pregnant women she would have to read at least the opening paragrpahs of every single decision for the whole two year period. I think we settled on her doing as much as she could in a fortnight!

 I’d joined the Equal Opportunities Commission (the EOC), the then statutory body with responsibility for ensuring women achieved equality, in 1980, when sex discrimination claims were gathering pace. By 1983 I was heading one of two casework teams. Ten years later I became Director of Employment. The EOC had a range of powers, including power under s 75 of the Sex Discrimination Act 1975 to support cases to the Employment Tribunal. My tenure coincided with the development of a strategic approach to sex discrimination and equal pay cases. 

However, while I know a lot about what’s in the Archive, I’m neither an academic, nor a lawyer, so my aims here are modest: in this first post I’ll look at why the Archive is important, and in my second, I’ll look at some of the issues where those wishing to research the Archive might usefully focus. 

The origin of the Employment Tribunal

The Employment Tribunal was originally set up as the Industrial Tribunal to consider appeals by employers against training levies[i]. It consisted of a lawyer, who acted as chair, one individual nominated by an employer association, and another nominated by either the Trades Union Congress (TUC), or by a TUC-affiliated union.  The tripartite structure remains intact, but the scope, procedures and powers of the Tribunal have expanded dramatically, most notably with the introduction of remedies for unfair dismissal[ii], and the outlawing of discrimination in employment[iii]. Since August 1998 it has been known as the Employment Tribunal[iv]. 

The Employment Tribunal acts as a fact-finding forum, and while its decisions can be appealed to the  higher courts (up to and including the European Court of Justice) the appellate courts cannot overturn the findings of fact.

It’s the Tribunal’s fact-finding role which makes the Archive such a rich source of women’s history, for it means that the case decisions contain personal information about the claimants, both generally and in relation to specific issues: their age; their educational qualifications, their employment experience;  how many weeks’ pregnant they were when they were dismissed, and so on. 

An accessible forum

The Employment Tribunal was intended to be accessible to ordinary men and women. It was to be a legal forum, but with an informality which would make legal representation unnecessary. The majority of the claimants are indeed ordinary people, but some – Dr Helen Marshall, the only person to have gone twice to the European Court of Justice;  Dr Pam Enderby, whose battle for equal pay for speech therapists took fifteen years – are quite extraordinary. What they all had in common was the wish to see equality for women become a reality. Time and time again we heard claimants say ‘I don’t want this to happen to anyone else!’

Whether the aim of doing away with the need for legal representation has been achieved is doubtful.  Where discrimination or unequal pay is at issue, the matter is too complicated to be argued without a lawyer, and one of the questions that could usefully be explored is whether women have a greater need of representation than do men. I think it likely that the issues raised by men tend to concern matters of fact – was a dismissal carried out in accordance with statutory procedures, or was it not? – but those raised by women – sex discrimination and equal pay – involve both an interpretation of the facts and a reliance upon case precedent. 

Much to do

Derby has much to do to set up the Archive in a way which enables its richness to be fully explored but it will be worth it. On some matters it may be possible to set information from the Archive alongside contemporaneous research and to discover, for example, whether early case decisions back up research findings that women who experienced sexual harassment tended to be those who were about to break into a male preserve – in other words, the harassment was not about sex, it was about power. 

And for a while longer at least, information from the Archive can be supplemented with anecdotal information from some of us who spent more than a decade immersed in the preparation of the cases.

Sheila Wild (c) February 2014

Writer and equality consultant Sheila Wild was for many years Director of Employment Policy at the Equal Opportunities Commission (the EOC), where she headed a number of major projects o workplace issues affecting women. Through her work on equal pay cases, and on the 1997 and 2003 codes of practice on equal pay, she acquired a particular expertise on equal pay issues and subsequently led the development and dissemination of the EOC’s equal pay audit kit, which for over a decade ahs been the focal point for UK campaigns to close the gender pay gap. Sheila Wild moved across to the Equality and Human Rights Commission in 2007, where she continued to lead on equal pay issues. Leaving the Commission in 2011, she set up  www.equalpayportal.co.uk an information resource on equal pay. An award-winning poet, she is currently reading part-time for a Masters in Publishing.

Sheila Wild, now in her mid-sixties, is a writer and equality consultant, and founder of www.equalpayportal.co.uk You can contact her at Sheila.Wild@btinternet.com