Byline Times: ‘The Power Imbalance is Enormous’: Inside the Ordeal of Employment Tribunals
This article features Government Accountability Project Staff Attorney and International Program Director, Samantha Feinstein.
When industrial – later renamed employment – tribunals began hearing employment claims in the 1970s, legislators hoped for a ‘speedy’ resolution to workplace disputes. The worker would make their case to a panel chaired by a legal professional and the employer would respond. There would be no need for lawyers.
Half a century later, Alan (not his real name) – a worker in a safety critical industry – paints a different picture of bringing an employment claim without a lawyer.
“It’s beyond nerve-racking. You get grilled by the employer’s KC for a day-and-a-half, or at least I did. Then you have to flip it over and ask questions of the other side. I just forced myself to keep going, stomach churning.”
Alan lost his unfair dismissal and whistleblowing detriment claim and is now mired in the fall-out. The “ping” of an email landing in his inbox – which he associates with legal letters – stresses him out. “It affects your family, because the upset filters through.”
He is also trying to appeal an order that he pay £10,000 towards the six-figure bill his employers racked up engaging solicitors and a KC to defeat his claim that they sacked him for highlighting safety breaches.
The judge said Alan acted unreasonably in not consulting a solicitor when, with three days’ notice, his employers’ solicitors warned they would pursue him for costs, unless he abandoned his claim, which they said was very weak. A solicitor would have advised him to simplify it, avoiding a long hearing, the judge said.
Yet, by then, the case paperwork ran to 1,000 pages, and Alan feared the solicitors’ charges would be colossal. “As a litigant-in-person, you might have a good case, but if you haven’t put it together right then you don’t,” he says.
Alan is not alone in believing that Britain’s employment tribunals are not cut out to provide fair and equal access to justice.
In recent decades, the employment rights that workers enjoy on paper has expanded massively. Yet, exercising those rights is becoming harder. Case law has evolved, often in favour of employers, and in 2012 a rule change removed legal aid funding from all employment claims, other than discrimination.
One problem is that employment law is complex and the mindset of tribunals is often highly legalistic. This has led to an odd situation in whistleblowing cases, endorsed by the Court of Appeal, where employees cannot be dismissed for raising a public interest concern. However, if their employer felt the way in which they raised it was unreasonable, they can be dismissed.
Andrew Pepper-Parsons, director of policy and communications at Protect, a whistleblowing charity, says “tribunals are being unrealistic” in making such fine distinctions. By its nature, “whistleblowing often upsets powerful people”.
The widening gap in access to lawyers is another problem.
When academics at the University of Greenwich analysed employment tribunal outcomes in whistleblowing cases, from 2015 to 2018, they found the biggest predictor of success was how much legal representation the whistleblower had relative to their employer. Whistleblowers with more equal legal representation won their claims significantly more often than those with less. Litigants-in-person did worst.
“There’s a pretence that employment tribunals are all very user-friendly, and you can just rock up at the hearing and they will sort the problems out,” says Audrey Ludwig, director of legal services at Suffolk Law Centre. “In reality, it’s often multi-year intensive litigation requiring as much preparation as a county court case.”
Ravinder Basra is among the third of workers according to government data who self-represent or depend on a family member, friend or trade union rep to act for them. Despite an academic background she struggled with the rules and procedures that her employer’s barrister had by heart. “Do you know how many books I had to read to realise what a point of law is? Six or seven.”
Laiane Dethling has a first-class law degree. She says “this puts me at a significant advantage compared with most litigants-in-person”. Yet, she almost missed the narrow three-month window for submitting a discrimination and constructive dismissal claim against the Metropolitan Police Service and has found structuring her evidence and applying the correct legal tests at times overwhelming.
“I was severely depressed after I was forced to resign, barely able to function,” she says. “I’m certain that without prior legal knowledge, I would have been at a loss on how to even begin as an unrepresented party. The power imbalance is enormous.”
The stated aim of employment tribunals is to put employers and employees “on an equal footing”. Yet the Greenwich research suggests this has not happened, or at least not fully. Campaigners are blunter – they say employment tribunals amplify inequity, signalling to employers that it is possible to break the law and still win the legal argument.
One problematic practice has been the old-school reliance on a judge’s private note-taking to generate a record of employment tribunal proceedings. As open justice campaigners highlighted in a letter to senior judges last year, the lack of a publicly provided verbatim record advantages the side, typically the employer, with greater means to employ note-takers. It also makes appealing decisions or complaining about a judge’s conduct hazardous.
Following the publication of new rules on 20 November, all remote and hybrid hearings in England, Scotland and Wales will be recorded. In-person hearings will also be recorded where recording equipment has been installed. Though around 25% of premises in England and Wales lack this capability. Litigants and their representatives will not have access to the recordings, apart from in authorised exceptional circumstances, though they will be able to request a transcript, for a fee.
Polly Cobb, a litigant-in-person, made a complaint against a judge that she was unable to evidence because there was no recording. Though, in principle, she welcomes the shift towards making recording standard practice, in practice, she is suspending her judgement and waiting to see how the new arrangements and the costs of obtaining a transcript work out. “My biggest caveat is that some claimants will still be unprotected, because of where the hearing took place”.
Alison McDermott, a self-funded litigant, says that it is not only the words spoken that matter, but how they were said – which transcripts cannot capture. “If judges can listen to the recording, then why can’t a litigant?” she asks.
As employers have lawyered up, the legal tactics on display have become more adversarial.
McDermott knew when she brought a whistleblowing claim against the nuclear site Sellafield and its parent company, the Nuclear Decommissioning Authority, that her evidence would be tested rigorously. What she did not expect, she says, was that her opponent’s barrister would impugn her character by suggesting she was in pursuit of a windfall, nor that the judge would allow this.
In a written costs judgment, the judge commented, without providing any justification, that there was “a strong suspicion” that in bringing her claim, McDermott was pursuing an “ulterior motive” of self-promotion. An employment appeal tribunal judge subsequently criticised the remarks as “troubling”. He said that the judge was “avowedly speculating” and decided that the order requiring McDermott to pay £40,000 was unsafe and should be reheard by a new tribunal.
But, however her case ends, McDermott says the damage is done. The judge’s discredited comments remain on the internet and her professional reputation and mental health have suffered. “I expected an employment tribunal to be a place of safety and dignity and fairness and it turned into an arena of intimidation and abuse,” she says.
As employment tribunals have become more like courts, employers have taken to issuing legal letters threatening to pursue their ex-employees for costs. According to government data, less than 1% of claims end in the employee paying their opponents’ costs. But, as Citizens Advice warned in 2004, as the tactic began spreading, even empty threats can push people to settle for less or abandon a claim.
“It sends a chilling message to those wishing to speak up about patient safety or poor behaviours such as bullying and discrimination”, says Dr Usha Prasad, a consultant cardiologist. Having lost a whistleblowing case, she faces the possibility of being ordered to pay £20,000 to her former employer, despite the BMA, 10 medical associations and the whistleblowing organisation, WhistleblowersUK, calling for her reinstatement and for her former employer to drop its costs application.
Exposing whistleblowers to even the possibility of cost orders is wrong and undercuts whistleblowing laws, says Samantha Feinstein, director of the international programme of the US-based Government Accountability Project. “In just one year of final rulings for 2018, I found at least 10 cost orders in UK whistleblowing cases. For me that’s evidence of a serious problem worthy of attention and correction.”
To ensure cases win on their merits rather than on lawyers’ tactics, Protect wants to simplify whistleblowing law.
“It should be automatically unfair to dismiss a whistleblower where their disclosure was a material factor in the dismissal,” says Pepper-Parsons.
When judges make legal mistakes necessitating appeals no allowance is made for the financial burden this places on a self-funded litigant, and that should change, argues McDermott. “There’s no compensation or redress where you can say at least pay back the money I spent when you got it wrong.”
Restoring legal aid at realistic rates might achieve more than expecting employment judges to somehow on the day put unrepresented claimants and employers with large legal teams on an equal footing.
“Lots of claimants are very strong on emotion but quite weak on the ability to forensically identify what their claim is and what the evidence is to meet it,” says Ludwig. Far from opening the floodgates to meritless litigation, free advice would help workers understand when the odds are against them, while helping those with stronger claims get their arguments into the best possible shape.
As Alan puts it: “If I were to start my case again, I would run it in a different way. But it shouldn’t be about that. I don’t see how you can be given rights and then be ordered to pay costs because you take those rights up.”