Employment Discrimination in the U.S. Versus the U.K.: Dismissals Prior to Jury Trials Versus Hearings on the Merits by Employment Tribunals That Include Lay Participation

Years ago, the United Kingdom (“U.K.”) recognized the fact-intense nature of employment cases and developed a system for their adjudication—a mixed tribunal system that uses two laypeople and a judge to decide employment cases. While there have been changes to the jurisdiction of these tribunals, employment discrimination cases have been recognized as particularly fact intense among employment cases and, until recently, have been exclusively decided by the three-person tribunal. This Article compares the mixed tribunal system for employment discrimination cases in the U.K. to the system in the United States (“U.S.”) where employment discrimination plaintiffs possess a constitutional right to a jury trial. The Article concludes that despite the right to a jury trial in the U.S. and no such right in the U.K., U.K. claimants have a better opportunity to have their cases decided on the merits by a neutral party than U.S. plaintiffs. First, in the U.S., many employers require employees to consent to arbitration for any disputes that may arise. As a result, arbitrators who are paid by employers often decide employment cases, including discrimination cases, and most of the time, arbitrators find for employers and against employees. In contrast, the U.K. does not permit forced arbitration in employment cases. This Article focuses on a second reason that U.K. claimants have a better opportunity to have their cases decided on the merits by a neutral decision-maker. In the U.S., in the federal courts, where most employment discrimination cases are decided, judges dismiss these types of claims on summary judgment at a high rate before trial. In the U.K., judges do not strike employment discrimination cases at the same high rate, and instead, almost invariably, a tribunal with a judge and two laypeople tries these cases.