Discourse Practices and Divergences in Legal Cultures in Employment Tribunals

This chapter takes as its starting point the insights provided by a number of authors (Bhatia 1993, 2002, 2004; Bhatia / Candlin / Engsberg / Trosborg 2003; Bhatia / Gotti 2006; Candlin / Bhatia / Jensen 2002; Drew / Heritage 1992; Garzone 2003; Goodrich 1988; Gotti 2003; Maley 1994; Swales 1990, 1996, 2004; Tessuto 2003) to examine discourse and professional practices in employment tribunals first in a national and then in an international context. With a view to investigating legal discourse in different legal systems, the chapter examines the institutional constraints on discourse processes in employment cases at Employment Tribunals in the UK, the European Union Civil Service Tribunal in Luxembourg, and the International Labour Organization Administrative Tribunal (ILOAT) in Geneva. Although in all cases the pragmatic function is the presentation of complaints by employees against their employers for the purpose of obtaining compensation or reinstatement, the procedural rules shaping the discourse are strikingly different, with consequent variation in generic structure and lexical content. In examining the institutional procedures and case materials, it is argued that Employment Tribunals in the UK, standing firmly in the common law tradition, provide for courtroom hearings in which the parties present their evidence orally, following the classic sequence of examination-in-chief and cross-examination. On the other hand, at the European Union Civil Service Tribunal (where cases may be heard in any of the 23 official languages of the EU, depending on the language of the application) and at the ILOAT, the proceedings (in English or French) bear a stronger resemblance to the civil law tradition, with most or all of the discourse taking the form of written pleadings. The jurisdiction of the EU Civil Service Tribunal is supranational, and that of the ILOAT international, dealing with complaints lodged by staff members respectively of EU and UN organizations. In the case of the European Union Civil Service Tribunal, written pleadings may be accompanied by hearings. However, in the case of the ILOAT, the holding of courtroom hearings would require the parties to travel from all over the world. Partly due to this constraint, the discourse is structured in an entirely different manner compared to the national tribunal, with claims presented and argumentation constructed almost exclusively on the basis of written documents, in a genre chain (Fairclough 2003: 31) consisting of the complaint, the defendant’s reply, the complainant’s rejoinder, the defendant’s surrejoinder, and finally the judgment. This enables the ILOAT to deal with cases entirely on the basis of written pleadings, with applications for hearings seldom allowed. An examination of the terminology in English in the three Tribunals, one national, one supranational, and one international, reflects significant divergences in legal cultures, as the parties seek to construct and interpret meanings while complying with the institutional constraints prevailing in each of the systems.