Struck Out

Why Employment Tribunals Fail Workers and What Can be Done

David Renton

• Publisher: Pluto Press
• Year: 2012
• ISBN:
  9781849646567
• Edition: 1
• Topic: Law
• Subtopic: Labour & Employment Law
• Index: Law

Every year, over a hundred thousand workers bring claims to an Employment Tribunal. The settling of disputes between employers and unions has been exchanged by many for individual litigation. In Struck Out, barrister David Renton gives a practical and critical guide to the system. In doing so he punctures a number of media myths about the Tribunals. Far from bringing flimsy cases, two-thirds of claimants succeed at the hearing. And rather than paying lottery-size jackpots, average awards are just a few thousand pounds – scant consolation for a loss of employment and often serious psychological suffering. The book includes a critique of the present government's proposals to reform the Tribunal system. Employment Tribunals are often seen by workers as the last line of defence against unfairness in the workplace. Struck Out shows why we can't rely on the current system to deliver fairness and why big changes are needed.

1

The Tribunal Obstacle Race

Tribunals are popularly believed to be non-legalistic, non-bureaucratic, and suitable for lay people to use whereas the opposite is nearer the truth.¹

His Honour Judge McMullen QC: Why did you submit your appeal late?
Miss Chidodo: Because I am poor and could not afford a lawyer.²

‘Mum awarded £50k payout’,³ ‘Sacked school assistant wins nearly £40,000’,⁴ ‘Council chief who fell victim to ageism in line for £1m.’⁵ If everything we read in the papers were true, it would follow that the Tribunal is a benign lottery in which workers, by no more effort than simply attending court, are awarded huge pay-outs. In part because of this reporting, as well as because of policy decisions taken by both Conservative and Labour Governments, the number of Tribunal claims has increased from around 15,000 cases per year in the early 1970s, to double that figure by the end of the 1980s, 70,000 cases per year by 1992–93, 100,000 cases in a year for the first time in the financial year 1995–96, and 218,100 claims in 2010–11.⁶

Yet set against this rosy picture of repeated Tribunal victories is the different story told by claimants, many of whom look back on litigation as among the most unpleasant experience of their working lives. Many Tribunal claimants describe feeling unhappiness as a result of litigation. Some 33 per cent of all claimants (and 43 per cent of all discrimination claimants) report suffering anxiety or depression as a result of their case.⁷ Lawyers refer to this phenomenon as ‘litigation stress’,⁸ and while some feeling of unease is perhaps inevitable for all litigants, irrespective of the court in which they appear, there is something especially wearying about Employment Tribunal claims. Here, for example, are the views of three former claimants, who were interviewed in 2006 on their experiences of bringing Tribunal claims:

I became financially in debt because I wasn’t able to meet my regular domestic bills ... I’m still trying to catch up on bills and things that got left. I’m trying to clear up this mess. The £3,000 was like a month’s wages, it went back against the bills. It wasn’t luxury money. Financially, I’m still struggling.

Physically and emotionally it took months to get over it and I was traumatised and weakened by it. You don’t know what’s going on, you’re in it and all I knew is that I was having to deal with this solicitor and getting no support and becoming anxious and crying, shaking.

I think it has affected me in that my tolerance for stress is less than it used to be. I am weaker.⁹

Of the above claimants, the first settled the case in advance of a hearing, and of the other two, one succeeded at a Tribunal hearing and one failed. In so far as they were paid, two out of three could be said to have ‘won’. When even successful claimants look back on their case with regret, something of significance must be wrong.

The purpose of this chapter is to set out some of the ways in which Tribunal litigation goes wrong. Here, I describe how workers lose, later chapters ask why.

CHOOSING A REPRESENTATIVE

The cases which succeed at a hearing typically have the backing of a trade union (or a law centre or a Citizens Advice Bureau (CAB) or the claimant’s legal fees are covered by their home contents insurance), with a solicitor representing the claimant up to the final hearing and then either a solicitor or a barrister providing advocacy at that hearing. Ideally, from the claimant’s perspective, all this will be done without them having to pay for the lawyers involved. Of those who are not advised or represented by a trade union or law centre or CAB but who fund their case themselves, some claimants go directly to a high street or to a specialist employment solicitor and obtain representation by paying an hourly fee or by agreeing to be represented on a no-win no-fee basis. The effect of no-win no-fee agreements is to reduce both the risk of litigation (a losing claimant will not have to pay towards their own or the other side’s costs) and its potential benefit (a typical fee is around 50 per cent of the claimant’s award, if they win; while no-win no-fee contracts may contain stiff penalty clauses if, for example, the claimant disagrees with their representative and decides to appoint a new representative midway through their case).

Where the worker is not a member of a union but there is a recognised union in the workplace, the union may be willing to advise or represent the non-member at an internal hearing, such as where the worker brings a grievance against her manager but has no intention of taking the claim subsequently to a Tribunal. In those sorts of circumstances, the union would normally find a lay union representative to represent the worker (representing a non-member well at an internal grievance or disciplinary hearing is often an effective way to recruit that non-member to the union).

Things are more difficult in situations such as threatened dismissals, where it may be clear from the start that the worker will be sacked and that if she seeks redress she will have to bring a Tribunal claim. Unions often limit representation to those of its members who have been already paying subs for at least six months before the hearing. While the rule means that fewer people get assistance, it unfortunately makes necessary commercial sense for the union. Tribunal cases are expensive. It makes no sense for non-members to gain the full benefits of membership without having contributed when their job seemed more secure.

In an ordinary dismissal of a trade union member for misconduct, the responsibility for the claimant’s case might be passed on as illustrated in Table 1.1.

Table 1.1 Procedure for claimant’s case

There are very many variations on this pattern. The sequence would be different if the case involved a point of principle of wide importance to the union (national officials might get involved rather than regional ones, or regional officials might get involved earlier), or if the case looked likely to be settled, or if the underlying law was particularly complex (the union might instruct a barrister at an early stage), or if the prospects of success were less than 50 per cent, or indeed if the union was a small one (so that cases would have to be handled by an outside firm of solicitors).

In disputes which threaten to go as far as the Tribunal, the claimant will need the backing of one of her union’s regional or national officials. Assuming an official is found to back her case, the official may refuse to get involved until the date of the Tribunal hearing is known. If officials advised every member with a simple grievance, they would be overwhelmed with work. In some cases, the official will do no more than request an initial assessment of the member’s chances of success. The purpose of assessment is to decide whether to pass the case on to the union’s lawyers. Five years ago, most unions would provide legal representation for a member with a 50 per cent or better chance of success. Where budgets are squeezed, it may be that even better prospects are needed before the union agrees to represent the worker.

If the claimant is supported by a local law centre or a CAB, she will be assessed to see whether civil legal aid, which is administered by the Legal Services Commission (LSC), will fund her case. In legislation which is presently before Parliament,¹⁰ the government proposes to restrict legal aid in employment to discrimination cases only. Until that bill is passed and comes into effect, all employment tribunal cases are capable of being funded by legal aid, irrespective of jurisdiction (that is, whether they are wages, dismissal, or discrimination claims). The chief filtering mechanism is that cases may only be supported where the client’s means are sufficiently modest so that she is eligible for legal aid. The rule is that the claimant and her partner between them must have a monthly disposable income (the difference between salary and rent or mortgage) of no more than £733 (in 2011–12).¹¹ Even before the present Coalition government had been elected, attempts were being made to reduce legal aid spending, by freezing the eligibility rate and not increasing it with rising prices. A 2008 estimate based on data from the Family Resources Survey, an annual survey of 28,000 UK households, suggested that only 29 per cent of the population of England and Wales was eligible for civil legal aid; a proportion dramatically less than just five years before.¹² Even where a client is eligible, the solicitor is ordinarily paid a fixed fee of just £302 (in October 2010)¹³ by the Legal Service Commission (LSC), for each of meeting clients, sending a letter of advice, drafting claim forms, reading and responding to any pre-trial correspondence, producing bundles, seeking disclosure of documents from the respondent, drafting the claimant’s witness statement, interviewing other witnesses and settling the case. Crucially, representation at the Tribunal hearing is not funded by legal aid; the LSC’s assumption is that a claimant will get a fair hearing if they attend without a representative¹⁴ and have to put their case directly to the Tribunal.¹⁵

Even where a claimant obtains representation, by either of these routes, she still faces obstacles. To maximise her chances, the claimant needs not just any old representative but someone with the skills to advance her case. A good trade union representative is someone of real value. The representative may know the company’s procedures by heart and be able to spot even relatively minor breaches by the employer. The representative may have lengthy experience of working with a particular manager and have developed the skills to persuade that manager to change his or her mind before a final decision is made. She may have a good understanding of what she needs to do to keep the claimant’s case alive. She may be well connected to the union’s legal networks, so that the claimant’s case is taken up seamlessly by an official and then the solicitor or barrister who will represent the claimant at an eventual Tribunal hearing. Best of all, she will have access to sources of strength that are wholly closed to the lawyer. For example, there may a group of colleagues who can rally behind the claimant, who could come forward as witnesses to a hearing, or who may even threaten strike action if the company does not back down. But the trade union movement is a movement of volunteers. Some union representatives have had little training in employment law, others have sought training but have been refused time off by their employer,¹⁶ and in any event only a minority of those who have been trained are familiar with the most recent changes to the law. A trade unionist’s skills are in workplace negotiation. If the average representative had the same legal skills as an ordinary lawyer, they would be a lawyer and not a trade unionist; they would presumably be better paid.

Even at the earliest stages, before Tribunal proceedings are contemplated, it is possible for an enthusiastic but under-trained representative to damage a claimant’s case, for example, by encouraging a claimant not to make serious allegations against a fellow worker which might antagonise the manager hearing the case. Caution is sensible in internal workplace disputes; it can be destructive later. If the claimant fails to raise a matter early on, and a complaint is raised for the first time in a Tribunal claim form, that part of the claim risks being struck out, or an award can be reduced for the claimant’s failure to follow the correct procedure, or the Tribunal may simply disbelieve the complaint: ‘If you thought you were being harassed’, the question will be asked, ‘why didn’t you complain of harassment at the time?’

Finally, the claimant’s difficulties are not less but just different if, rather than having union representation, she makes an initial approach to a solicitor in private practice. Cost and time pressures ensure that the client will spend much time with trainees rather than experienced caseworkers. High street solicitors will see a case differently from a union representative, they are, for example, more likely to take internal hearings for granted (as they will usually not be allowed to attend them).

The primary disadvantage of going to a private solicitor is of course that the claimant will have to pay their fees: solicitor rates’ can be of the order of £150–300 an hour,¹⁷ while few barristers would agree to appear at a Tribunal for less than £500–800 per day, and some barristers (typically, a certain class of respondent’s representative), will charge their clients fees of up to £1000 per hour.

COMPLETING THE CLAIM FORM

A second key moment comes with the claimant’s decision to submit a claim to the Tribunal. This is done by completing a (‘ET1’) claim form, which can be found online.¹⁸ Most of the information is relatively straightforward: name, address, salary, date of dismissal (if dismissed). The most difficult question on the form is the one where the claimant is given an opportunity to set out the essential details of her case.

The accuracy expected by the Tribunal of the information given in this section of the form will depend on whether the claimant is represented by a lawyer or not. A claimant who has legal representation will be expected to complete this form with precision; but where the claimant does not have representation the Tribunal should normally take a more permissive attitude. Usually, an unrepresented litigant will have the opportunity to cure any defects in their claim form at a subsequent Case Management Discussion (CMD). At such a hearing, the Tribunal may, for example, invite an unrepresented claimant to provide further and better particulars of her case. Assuming the claimant does so, this procedure will cause her no prejudice.

The Tribunal’s reaction to the information in the form represents a compromise between two directly opposed ways of thinking. One approach is to treat the information in the form as legal ‘pleadings’, that is, the client’s formal case, and equivalent, say, to the documents produced by large corporations when they litigate in high-profile proceedings, such as claims before the High Court. There is...