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Disputes Tribunals Updated 03 Aug 2009

Justice or the law?

Deep in the Disputes Tribunals Act is a small clause with enormous power. It says:

"The Tribunal shall determine the dispute according to the substantial merits and justice of the case, and in doing so shall have regard to the law but shall not be bound to give effect to strict legal rights or obligations ..."

That clause gives referees the right to decide cases based on what is fair - not necessarily on what is prescribed by the law. It's probably the most important way in which the tribunals differ from the rest of the court system.

But it has led to some criticism that the tribunals can't be relied on to give consistent decisions.

Is this a problem? The referees themselves say differing opinions are inevitable when you look at every case on its individual merits. They say when procedures are consistent, fair decisions will follow - even if they're not identical.

And as one says, "Let's not confuse reasoned disagreement with inconsistency. Even the Court of Appeal bench is not always in agreement, but they are not deemed to be inconsistent."

However, consistency is an issue the principal referee has pledged to keep an eye on, by reviewing all appeals lodged about decisions, and their outcomes.

If you have a serious complaint about the Disputes Tribunal process (not about the outcome of your case) you can write to the Principal Disputes Referee.