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.

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

'Mum awarded £50k payout', 'Sacked school assistant wins nearly £40,000', 'Council chief who fell victim to ageism in line for £1m.' 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.

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. Lawyers refer to this phenomenon as 'litigation stress', 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.

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.

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...