We have long required a cool hard look at remedies in employment law. Thus far works such as Anthony Korn’s book have been a description of such remedies. We especially need this review with a new Government which may be willing to make changes to a regime which has been stuck in creosote since the 1970s when unfair dismissal was introduced to an expectant world. Even the definition of remedy has not been studied before; indeed it is hopelessly imprecise says the author of the reviewed book. She is appropriately catholic in her coverage of the subject, looking beyond what we would think of as traditional employment law to for example slavery and trafficking, gangmasters’ licensing and health and safety.

There is no person better to provide this much-needed work than Professor Anne Davies, an Oxford academic who combines a strong academic grip with the practical sense that comes from having sat on the ACAS Council and other public appointments. The book takes a fresh look in an entertaining, well-written and open way. This is a true walk through the dark forest of remedies with some light at the end. The central argument of the book is that some of the remedies at common law or by statute are a poor fit for the employment rights they are designed to protect. There are, she concludes, three broad problems with remedies: analytical failures, structural injustices and imbalances between workers and employers. Davies emphasises that many remedies do not reflect a proper ranking of employment rights and fail to reflect the law’s priorities. They have grown up piecemeal over the ages with different legislation and reflecting the priorities of various governments.

There are many different purposes that remedies might serve (eg compensation, punishment or vindication). Some employment remedies properly vindicate rights (ie to acknowledge that the claimant’s rights have been infringed); some may have punitive element (eg aggravated damages). Some remedies do not always reflect personal characteristics; some are so low that they do not indicate that Parliament was overly concerned about their enforcement. She rightly criticises the readiness of tribunals to conclude that, even though the dismissal was unfair, the employer could have dismissed that person fairly anyway soon or that an unhappy employee would soon resign. The lack of utility of re-employment orders as currently drafted is also eloquently expressed.

One area on which Davies could have placed more emphasis is s145B Trade Union and Labour Relations Consolidation Act 1992. It gives a member of a recognised union a right not to have an offer made to him if acceptance would mean that their employment terms are no longer determined by a collective agreement. This may be one term only not so negotiated. For this, each lucky claimant gains £5584 and there is no mitigation or reduction available to the respondent. This seems like an unjustifiable windfall. She describes it merely as a “relatively strong remedy”.

Less common than compensation or vindication is the ability of a remedy to replicate the right which has been infringed. The author considers that such a replicative remedy may be more effective than others. As she puts it

“More strikingly, the law rarely requires the employer to go away and take the decision again, applying the law properly, even though this would provide the precise protection envisaged. These are orders requiring the employer to do something identical to, or very close to, the duty it has infringed”.

A paradigm example of this concept is that rather than providing the claimant with a sum of money when the employer does not allow them to be accompanied at a disciplinary or grievance hearing, it may be preferable to require the employer to hold the hearing again with the representative present. This argues inevitably for more injunctive relief which the law has generally shied away from in the employment arena. This should be considered by the new Government.

The book naturally also considers the strange situation of injury to feelings awards which are available in discrimination but not unfair dismissal because of the Dunnachie v Hull City Council decision in the House of Lords. She says they should be “available in principle in all employment cases, both at common law and in statute”. Such awards would Davies says reflect the employee’s loss of job satisfaction, social contact and career development and to acknowledge any particularly bad behaviour by the employer. It would also substantially increase awards.

But there is also a deeper issue for claimants which the book examines in some detail; that remedies provide no real solution if they are not capable of being enforced. The imbalance is clear in that 77 per cent of employers had representation at a tribunal hearing compared with 41 per cent of claimants. Trade union representation which used to be so effective before tribunals is now non-existent. The further extraordinary fact shown by a government-sponsored study in 2013 was that only 49 per cent of successful tribunal claimants were paid in full what they were due after tribunal proceedings. This is a disgrace which undermines the whole system and it needs to be addressed urgently. Of those who were unpaid for any reason, only half pursued enforcement action, and of these, only half received some or all of the money they were owed. Davies considers carefully the arguments for public enforcement of remedies.

The most obvious advantage of public enforcement, particularly compared to litigation, is that it takes the responsibility away from the affected working person but she notes that public enforcement agencies have their own priorities and policies on inspection and enforcement, and are unlikely to be able to respond equally vigorously to all complaints. She concludes that where possible, remedies should be designed in ways that motivate workers to seek them despite the difficulties in doing so.

This is an important and timely book. Take a walk in that forest and you will not be disappointed but you may be depressed. Let’s hope the Government can cut through the woods.

About the author:

John Bowers KC, Principal of Brasenose College, Oxford

After attending Clee Grammar School, Cleethorpes (latterly Matthew Humberstone Comprehensive), John studied at Lincoln College, Oxford.

John was called to the Bar in 1979 and took silk in 1998. He has practised primarily in employment law and human rights. He has also been described in a review as “an employment law rock star”. He is listed as the 4th most reported advocate in the Industrial Relations Law Reports (IRLR). John was Chambers & Partners Employment Silk of the Year 2010.

He acted in most of the major industrial disputes over the past decades.

His landmark cases include a European Court of Human Rights application on the employment of gay servicemen, House of Lords rulings on injury to feelings awards, the Supreme Court decision on whether legal representation is required in internal disciplinary proceedings and the largest ever Employment Tribunal application by 12,000 retained firefighters, which eventually went to the House of Lords.

A frequent lecturer on employment law, John has written 16 books including the recently published ‘Downward Spiral’ on the collapsing public standards in Britain. He is a CEDR trained mediator. John was a member of the Standards Board for England and the Home Office Task Force on Human Rights. He sits out of term as a Deputy High Court Judge. Since 2005 he has been a Bencher of Middle Temple.

Suggested citation: John Bowers KC, ‘”Valuing Employment Rights? A Study of Remedies in Employment Law” book review – by John Bowers KC’, UK Labour Law Blog, 2 September 2024, available at https://uklabourlawblog.com)