Laymen as Lawyers in the Processing of Dismissal Disputes

Abstract

Concern for the perceived disadvantages of the industrial tribunal system in the processing of unfair dismissal claims has led to a debate about the possible merits of processing such claims by arbitration.1 There is a tendency for the current discussion to be conducted in terms of an implicit dichotomy between legal and industrial relations models for dispute resolution.2 From the industrial relations perspective, an over-legalistic tribunal model is assumed to operate with a set of concepts, values and procedures that are mercifully absent from the proposed arbitral model, whilst from the juristic perspective there is assumed to be a qualitative difference between lay and legal reasoning. Regardless of whether the case is made for or against the current system, it is assumed that the legal model emphasises abstract and formal consistency while the lay model emphasises the empirical substance. In the existing system legal reasoning is seen to have the prerogative of handling and establishing the boundaries of the case, whereas lay reasoning tends to deal with an unbounded reality. Legal boundary-maintenance is seen as a defect or a virtue according to the writer's standpoint; but one possibility, however, is excluded from both standpoints: that standards inherent in law may be part of the vocabulary of motives through which lay consciousness achieves its construction of reality. Drawing on evidence from a study of the arbitral disposition of dismissal disputes by lay people under statutory regulation, this paper argues that the assumption of a lay-legal dichotomy results from an unwarranted ideological simplification. The tendency to see the tribunal and the arbitrator as operating distinct models misunderstands and misrepresents the nature of law in society - it assumes that law and law-like values and concepts are absent from all common-sense lay thinking and that an arbitrator is operating with a set of social values that are divorced from the historical body of law (common and statute). As Henry3 has shown in his study of internal discipline, certain legal concepts and ways of thinking about justice are part of the common stock of everyday knowledge applied in disciplinary proceedings: law and private justice interpenetrate. In this paper illustrative evidence for the necessary interpenetration of the industrial relations model for public settlement of dismissal disputes with core values of legal justice will be drawn from