Suja A. Thomas, Employment Discrimination in the US versus the UK: Dismissals in the Jury Based US versus Hearings in the Jury Less UK, 93 George Washington Law Review __ (2025).
Years ago, the UK recognized the fact-intense nature of employment cases and developed a system for these cases—a mixed tribunal system that uses two lay people 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 UK to the system in the US 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 US and no such right in the UK, UK claimants have a better opportunity to have their cases decided on the merits by a neutral party than US plaintiffs. First, in the US, 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 UK does not permit forced arbitration in employment cases. This Article focuses on a second reason that UK claimants have a better opportunity to have their cases decided on the merits by a neutral decision-maker. In the US, 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 UK, judges do not strike employment discrimination cases at the same high rate, and instead, almost invariably, a tribunal with a judge and two lay people tries these cases.