Peter Hamilton, University of Durham
Employment tribunals have played an important role in UK industrial relations since their establishment in 1964. Since that time both their jurisdictional scope and the number of applications has increased considerably. Currently there are around 100,000 applications per year of which approximately 25% result in a full tribunal hearing (Hayward et al 2004). As a significant public policy process there has been extensive research conducted on them. For example, investigations have examined the degree to which they meet the original intent that they be speedy, cheap and accessible (MacMillan 1999; Colling 2004), the issue of applicant and employer representation (Latreille et al 2005), alternative forms of dispute resolution (Singh 1995), the parties perceptions of the tribunal system (Hayward et al 2004 2003), the ideological basis of the tribunal system (Boothman and Denham 1981) and the factors influencing tribunal cases (Knights and Latreille 2000). Research has also been conducted on how they operate in relation to such jurisdictional responsibilities as unfair dismissal (Earnshaw and Hardy 2001), sexual harassment (Earnshaw and Davidson 1994), and disability (Woodhams and Corby 2003).
In this paper, the focus is on the micro-dynamics and specifically the processes of persuasion within the tribunal hearings, an area of research in which there is a distinct paucity of research. Such a focus is grounded on the argument that persuasion is central to many of the processes of industrial relations (Hamilton 2001) and should be seen as central to what occurs during tribunal hearings. The quasi-legal and adversarial status of tribunal hearings would also suggest that persuasion should be playing a role. In addressing persuasion the paper links this to rhetoric, since tribunal hearings are instances of Aristotle’s (1991) judicial genre of rhetoric. Tribunal hearings would, therefore, be expected to be settings in which people perform rhetorical action and can be considered as a paradigm case of rhetoric (Foss et al 1991). That is, they epitomise the spoken (and written) word being used to persuade an audience. In the context of the employment tribunal the main audience is the three member panel, consisting of the legally trained Chairperson and the two lay members. The argument that persuasion is central to the process of the tribunal can also be read in the comment of one Chairperson, when in a redundancy case he asked the respondent: “Can you say anything to persuade us regarding your case”.
The paper’s analysis is based on observations and recordings conducted during 2006 and 2007. All the observed tribunal hearings were one day cases, so the entire hearing was observed through claimants and respondents evidence to the Chairperson verbally summarising panels’ decisions. Chairs typically spent around 20 minutes talking through their decisions. In no particular order, the decisions typically relate the specific law(s) under which the case is being decided, confirm the complaint before the tribunal, detail the issues which the tribunal is considering and the remedy the claimant is seeking, and describe the case before the tribunal. The Chairperson then typically goes onto recount why the decision is as it is, before stating the outcome vis-à-vis, for example, the level of compensation due to a claimant. While it is expected that a panel’s decision will be based on the written and oral evidence presented to it, the paper discusses to what extent we hear this coming through the Chair’s summation. The paper’s main focus, therefore, is how do we hear the parties evidence coming through in the decision which the Chairperson summarises. The main analytical focus of the paper can, therefore, be found in the words of another Chairperson, when he asked a respondent the following question: “Why do you think we should accept your version of events as they are both different?”
The main textual focus of the paper is, therefore, the Chairperson’s summary of the panel’s decision. In terms of analysing this, the main focus on a Chair’s verbal decision examines the reasons which the Chair gives for accepting a particular version of events. The analysis suggests there are two broad themes which repeat across many of the summations. These two themes are consistency and the follow-up actions. By the former is meant, for example, how consistent is the written and oral evidence which is submitted, together with any witness statements. The latter refers to what either party does after an incident. For example, where there is a dismissal, when did the respondent dismiss the claimant in relation to any incident or what did a claimant do to counter any loss they experienced, such as finding new employment.
The analysis of the Chair’s summation is then used to draw out points in relation to the rhetoric of the hearings in terms of the means of persuasion. In this regard, the paper argues that ethos plays a highly significant role in the panel coming to their decision. Ethos was one of the three means of persuasion which Aristotle (1991) first classified in his Art of Rhetoric. Aristotle’s use of the term ethos differs to how we generally view ethos as the spirit or tone of a community. In his terms ethos concerns how persuasion emanates from the speaker’s standing with the audience (Corbett and Connors 1999). As Aristotle writes:
“Proofs from character are produced, whenever the speech is given in such a way as to render the speaker worthy of credence” (1991: 74).
As Dixon (1971) puts it, while this proof is established through the speaker’s character, it should be contained within the talk or text itself, an important point given that the panel only has the written and oral evidence on which to base a decision. The point here, therefore, is not that Aristotle’s other proofs based on argument (logos) or emotions (pathos) are not found within the panel’s decision, but that ethos plays a significant role in accounting for why a panel reaches the decision it does. In arguing this, the paper will also address the implications of this, for example, in relation to case presentation and the advice which both claimant’s and respondent’s should be given prior to submitting evidence at a hearing.
References
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