Employment Tribunals: Weighted Against Employers?

The Today programme on Radio 4 ran a story this morning dealing with whether employment tribunals are used to extort settlements from employers. Adam Wagner has already posted a thoughtful response here. Some of the assumptions relied on in the programme were questionable. Having conducted some research in the area (see here, here and here), I share some of the important facts as I see them:

  • Having interviewed solicitors specialising in employment cases, and looked at data from BIS’s survey of employment applications, it is clear that significantly more money is spent on defending employment claims than is spent on bringing them. Fewer employees are represented or have the benefit of meaningful advice. Unless it is significantly harder to defend than to bring employment claims, this suggests an inequality of arms against employees not in favour of them.
  • A lot of emphasis was placed on the fact that, ordinarily, claimants would not be asked to pay their opponent’s costs and therefore employment tribunals are effectively riskless. This is true, but is only part of the picture. For employees to bring claims they either have to fund their own lawyer (payable win or lose) or someone else has to fund that case (either a trade union, an insurer or the lawyer him or herself by taking on the case on a no win no fee basis). There is risk on that case (about a quarter of cases are lost) and that risk is borne by the funder. This should, and probably does, inhibit the bringing of poor claims.
  • A comparison was made between the absence of costs shifting in employment tribunals and the presence of costs shifting in litigation. Both positions are simplifications, but in fact the vast majority of employment tribunals are settled for less than £5,000 which would suggest these are cases akin to small claims where in general there is an absence of cost shifting.
  • The idea that no win no fee agreements have lead to a significant increase in claims is flawed. The best estimate of the current level of contingency fees in employment tribunals is that they fund about 7 percent of claims.
  • Similarly the idea that no win no fee claims lead to poorer claims is flawed: my research suggests claimants on no win no fee agreements get very similar results to those who bring cases under other fee arrangements.
  • The assertion on the Today programme that claimants lose more cases than they win when they actually reach a final hearing also appears to be incorrect (see figure 9.1 here). In the 2008 survey more claimants won their cases than lost them (although in 2003 slightly more lost than won). To me the data suggests a reasonable balance between cases won and lost with defendants and claimants taking cases to tribunals with reasonable expectations (on both sides) that they are likely to prevail at a final hearing.

None of this data deals directly with the normative question whether employment tribunal claims contain too many poor quality claims but the fact that about 75%-80% of claims are settled, and the fact that both claimant and defendant stand a reasonable chance of winning their cases at a final hearing do not suggest a system that is not operating effectively in terms of the merits of the claim. It is possible that the settlement figure contains nuisance settlements of poor merits (but also that the cases dropped are sometimes based on flimsy defences – a problem that never gets mentioned in such debates). The only way to establish directly the extent of either problem would be to take a random sample of claims and review their merits independently. With decent cooperation from sufficient parties this is possible. If employers are genuinely concerned about the problem, they should fund this kind of research rather than relying on lobbying on a set of dubious premises.

A second issue is that this kind of complaint about employment tribunals indicates a broader failure. If tribunals were genuinely user friendly, then neither party would need to use lawyers: costs could diminish and the access to justice of both parties would be served. This suggests that reform should concentrate not on reform of costs rules but on simplification of substantive law and procedure as well as a radical focus on making the adjudicatory process lay- rather than lawyer friendly. Prohibition of legal representation might be contemplated or even Ombudsman, inquisitorial-style approaches which circumvent the need for representation (perhaps lawyers could be forbidden in lower value cases). This should also reduce cost significantly. Simplification, de-lawyering or the development of Ombudsman like approaches might be subject to the criticism that the employment disputes are not subject to the rigours of adversarial process or that justice is in other ways rougher. In other words, the criticism might be made that a less adversarial approach would lead to rougher justice. That may or may not be the case in the abstract but the reality is that most cases settle, employees and employers are inhibited from exercising adversarial rights by the legal costs they would need to incur. Similarly, the link between complexity of law and refinement of legal decision-making is a dubious one (see Wright and Ellinghaus’ is work referred to here). The argument might therefore be turned on its head: the realities of legal costs make adversarial justice rougher justice. Maybe it is time for a change?

 

 

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About Richard MOORHEAD

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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29 Responses to Employment Tribunals: Weighted Against Employers?

  1. Great informative post. I cannot see a move away from lawyers being involved, employment law is complex at times. But a risk of costs might be an idea, and the removal of contingency fee agreements too.

    I blogged a bit about this (I’m very much new to blawging) but it’s the comments that are more interesting : http://smather.com/2011/01/04/bbc-spends-600000-on-employment-tribunal-claims/

  2. Simon Jeffreys says:

    I wholeheartedly agree with Prof. Mooreheads analysis, as the Radio 4 item had me spluttering into my morning tea.

    I am a solicitor and spent 27 years fighting the employers’ corner in employment law with abig City of London law firm. Now in semi-retirment, I work part-time here at the CAB providing free Legal Help for poor employees.

    Unfair dismissal is weighted heavily in employer’s favour and they really do need to have made a significant cock up or to have acted very naughtily to lose an unfair dismissal claim.

    many of my clients have low value claims – for unpaid wages, minimum wages and redundancy pay, where all too often bad or stupid employers don’t comply with well-established laws. many of them don’t get written contracts, so employers can use uncertainty about job terms and security as a lever over employees. The Tribunal is all too often their only hope of getting what they are owed. And without help from people like me they would not know how to do it, or have the confidence to do it.

    I am all in favour of a more inquisitorial role for Employment Judges – it would probably mean employers would lose more cases and more employees would be willing to bring claims.

  3. Mia Wright says:

    I don’t see the point of Employment Tribunals, the big companies always win because they can afford expensive lawyers. I have always said that if it is to be fair, there should be no lawyers involved; the parties should be able to put their case before the Tribunal Judge. Even when a case looks straightforward, that the company did not follow rules laid down, they still win. The law is being changed or has it already changed that would make it easier for employers to sack staff; this is already happening, a lot of employers are prepared to lie and the Tribunal Judges believe them even when there is no evidence to support them. I know this from first hand experience. Even when the employers fails to carry out proper investigations and appeals they win. Employment Law is a joke and is only beneficially to those with big pockets, namely, the EMPLOYERS.

    • Osprey says:

      Sadly the Judge is a lawyer too……

    • H Qazi says:

      i do agree with you Mia Wright, i am in east london tribunal,employer have expert solicitors.i do not have any help what so ever. my part of claim struck out before the trail.which i believe not fair and unjust.its pre-empt strick.i asked judges reasons.respondent submission contains four pages.judge decided to include all four pages in reasons. claiment submission contains six pages. judge decided to include few lines out of six pages in reasons. in addition those few lines are incorrect and does not make any sense.an ambulance was called judge decided not to include an ambulance in reasons. and use of undated and not signed documents in judges reasons.

  4. Osprey says:

    From personal experience. The simple fact is that if employees feel it necessary to go to tribunal they have already been beaten up, cheated or mistreated by their employer that is why they appeal? For most therefore it is the last resort. Highly stressed by the employers Lawyers rewriting history, then for 50% of these people to lose their case is appalling this shows a terrible bias of the system to employers and the only real winners the lawyers. The figures for cases that reach a hearing should be 90% of cases won for employees. .After my case It is my firm belief it is only fair that there should be free legal representation available at court for claimants as there is for any other court in the UK.

    • Mia Wright says:

      Big companies with vast pockets always win even when they are in the wrong. ACAS too is a waste of space and so too is the Employment Act. Thea law says one thing but the Employment Tribunal and ACAS says something else. WHERE IS JUSTICE? No-one should bring lawyers into a ET everyone should be able to argue their own case. Although in some cases, the employee might be a bit nervous, especially if they have been bullied by the employer. If one goes to the CAB, volunteer lawyers are available, again this is hit and miss because they are just juniors and in most cases have not have any experience in Employment Law. It’s all down to MONEY not justice. Those employees who win big have expensive lawyers, but for the ordinary people with no money they will always lose because of lack of funds and bias judges. The Appeal Court states in my letter that they are not there to overturn the verdict from the ET even when points have been shown that they were wrong in coming to their conclusion. Also, they say you can go for a ‘review’ but the same judges who concluded the verdict are the same judges doing the review, are they really going to overrule themselves?

  5. Hamid Qazi says:

    I liked the radio 4 program. I was dismissed last April. On the grounds of gross misconduct. I was union rep. I wrote complaints letters. About job cuts, against management and few close to menegement. My dismissal letter says I used malicious letters against company and offended work coleouges. But dismissal letter failed to tell who was offended and what is malicious. I appeal against my dismissal. My company hearing was late June. I have hearing in tribunal. I have revived a letter from defendant lawyer. I don’t know any thing about employment law. I will grateful if some one can assist just few points. Kind regards. H Qazi

    • Mia says:

      Go to your local Law Centre for advice. In some cases you may be able to get a volunteer lawyer for a law firm. Good luck.

  6. Ellie says:

    Very interesting post, particularly with regard to the debate raised around the issue of legal representation, and the questioning of whether an adversarial system offers effective justice.
    However, despite touching upon these issues, the article, in the main, misses the point(s)…
    of which there are several…
    The Radio 4 broadcast mentioned struck me somewhat as an attack on the “little man” (employee). Its scaremongering approach attempted to present employers (many of which are both immense companies, and immensely wealthy) as poor, beleaguered victims, held prostrate at the mercy of unscrupulous employees, who use the Employment Tribunals system to “make a quick buck”!
    Surely anyone with half a brain can see that this is NOT the case? For the majority of employees, I would think that the prospect of having to take their employer to Tribunal is utterly terrifying. It is a last resort, for people at the end of their tether, to be used after all other, more amicable, attempts at negotiation have been exhausted. It is NOT, as suggested, a way for employees to “cash in”.
    Employment Tribunal cases generally involve SERIOUS issues – whether they be genuinely serious, or serious in terms of how the aggrieved employee views them, the effect is the same. The issues that lead an employee to bring a Tribunal claim are offensive, distressing, painful, humiliating… any number of things that no reasonable human being would wish to be subjected to. Current Law states categorically that human beings are to be afforded certain HUMAN RIGHTS. The issues that lead an employee to bring a case before an Employment Tribunal frequently involve contravention of these fundamental rights.
    We must remember that the Tribunal system, itself, only permits the bringing of claims based upon certain grounds. Therefore, many, if not all, will contain the following elements:
    1. DISCRIMINATION – be this about age, gender, sexuality, disability or race. Surely, we must all be aware that a person who has been a victim of discriminatory behaviour (even a person who simply feels that is the case, and who does not yet have full proof) will feel wounded, offended and distressed? They may dread the Tribunal hearing, as they will there have to re-live ALL the events that they have previously gone through. Discrimination of any kind is deeply unpleasant, and utterly de-humanising. Why would anyone wish to go through it twice, if not for a very genuine reason?
    2. BULLYING, HARASSMENT OR VICTIMISATION – again, clearly NOT something that anyone would wish to undergo. Many employees have attempted to put up with months, sometimes years, of distressing treatment at the hands of their employers before they reach the point of lodging a Tribunal claim. Often, they have to face the hearing in a state of emotional distress. Some may even be in receipt of psychiatric treatment as a result of the suffering they went through at the hands of their employers. Yet they are expected to face up to, and be in the same room as, individuals who have been the sole source of their distress. AND, because they are at an Employment Tribunal, they are expected to try to remain calm and collected!
    3. UNLAWFUL DEDUCTIONS FROM WAGES – the employee may actually be financially under strain, due to their employer having failed to pay monies owed. They then have to face the insulting process of having to prove that they were owed said remuneration, whilst their employer blatantly attempts to argue that what was clearly a contractual agreement, somehow is no longer!
    4. FALSE ACCUSATIONS AND MALICIOUS GOSSIP – it goes without saying that; when somebody is having problems at work, and when they no longer see eye-to-eye with their employers; there will be knock-on effects. The relationship with their employers broken down, an employee may be subject to more scrutiny than co-workers, or may constantly be the target of criticism. Sometimes, false accusations may be made, as an employer desperately attempts to fabricate reasons for needing to take disciplinary action against an employee. The real reasons for an employer’s desire to dismiss may be personal, or may be as a result of fear concerning an employee’s “whistleblowing”; they may even be completely hidden. However, to discredit the potential dismissal candidate, accusations of misconduct are made. Clearly, hand in hand with this will go malicious gossip.
    This is only my personal opinion, so may be wrong, but I would not hesitate to suggest that the Employment Tribunal system is weighted AGAINST EMPLOYEES. For a start, they are not wealthy, and generally do not have the resources to fund an expensive legal representative (furthermore, many employers use their own company’s in-house legal representatives, so technically their representation is FREE). Employees have to try to rely on legal aid (if eligible), no-win-no-fee (if available), Unions (if available) or represent themselves. They are immediately at a disadvantage, as they enter the Tribunal system knowing that they have a hard fight just to secure representation. Should they represent themselves, then they are disadvantaged by not having a good working knowledge of the Law.
    To add to the above, the employee taking a case to Tribunal has often been through a long period of stress, possible bullying or discrimination, and problems at work before reaching the Tribunal stage. They may be distressed, mentally and physically worn out, emotionally in tatters. They may be struggling financially due to loss of pay. They may fear loss of reputation. They may have lost friends due to falling out with ex-coworkers; or they may feel alone, as they have not been able to tell colleagues what was going on. Some may be facing additional problems, such as separation, divorce, or loss of their home. It is doubtful that an employer will be facing any of this.
    So, the employer goes into the Tribunal well-prepared, emotionally and physically fighting fit. The employee goes into the Tribunal, anxious, fearful, ashamed, embarrassed, stressed… to name but a few possibilities. They may find it hard to re-live events. They may be confused, frightened, distressed… and therefore not represent themselves as well as they could have.
    For employees who have genuinely suffered at the hands of unscrupulous employers (and, yes, bad employers DO exist) the Tribunal system can be a potential nightmare. It is their only way of attempting to secure justice. But to do so involves re-visiting traumatic events, listening again to bullies give their fake version of occurrances, re-living discrimination, facing up to people who have hurt, humiliated, threatened and sometimes even attempted to destroy them.
    It is to be noted that mental health charities such as “Mind” and “Rethink” have raised concerns as to links between bullying at work, discrimination, Employment Tribunals and Post Traumatic Stress Disorder. Tribunals themselves, such as the case of “Michalak v Mid Yorkshire Hospitals NHS Trust”, have recognised Post Traumatic Stress Disorder, and have made decisions to award compensation figures which include amounts to take account of the fact that this disorder can be induced by an employer’s treatment of an employee. But such payouts are few and far between, and in the main, employees continue to face their employers at Tribunals where Post Traumatic Stress is NEVER even given consideration.
    How, then, can it be said that employees are using the Tribunal system to make money out of employers? The very suggestion would seem to me the fabrication of an extremely vivid imagination. The reality is, sadly, VERY different!

    • H Qazi says:

      i will grateful if someone can tell me the total fegure of tribunal cases in 2011. and how many cases employee won? thank you.

      • Kevin says:

        There were approx 218,000 employment tribunal claims between 2010-2011, Not sure how many employees won, will try to find out for you. If you were dismissed last April (2011)??? Then you can not make a claim at an employment tribunal as you only have 3 months to lodge claim from the day you were dismissed. You can still lodge a claim in a civil court as this is 6 years,,,

  7. A very stressed,angry and poor employer says:

    being an employer and currently going through a tribunal, employees get away with anything and can say anything,they dont do their job properly and expect to get paid for it. if your dismissed then your dismissed because your employer is not happy with your work. if employees were doing their job right then they wouldnt get dismissed! Trying to run a business is hard enough right now and money is tight, if your dismissed then your dismissed just walk away and accept it you wasnt right for the job!!!! until you’ve been on the receiving end of a tribunal then you wouldnt know what stress it causes the law should help businesses not help them go out of business!!!

    • Maria Wright says:

      The small businesses are at the mercy of some unscrupulous employees but in the main, the tribunals are for the big powerful companies. if this ‘very stressed, angry and poor employer’ really looked at who is getting the short straw, he would see that it’s those employed by the large powerful companies. The small businesses suffer because of them, it’s easier to rule against the small businesses because they cannot afford expensive lawyers. Dismissing an employee should not be the first port of call, what this ‘very stressed, angry and poor employer’ should be angry at are those big powerful companies who lie on their employees, some to get out of paying redundancy. The big powerful companies do not have to show proof of any wrongdoing on the part of the employee. Do you think that is right? If a employee is treated unfairly, they should be able to have their voice heard. Governments and tribunals are scared of upsetting the big powerful companies; unfortunately, the small businesses suffer instead. In my opinion, there should be no lawyers present, each person should speak up for themself and anyone found to be lying should be prosecuted for perjury. Many employees are being treated unfairly but never bring it to tribunal and the unscrupulous employers get away with it.

      • H Qazi says:

        respondant solicitor wrote me to withdraw my claim by no later than 5pm on 10 December 2012. if i do respondant will not pursue cost with this claim. also wrote me, it is irrelevent whether the tribunal actually belives your version of events. the tribunal will only be able to determine from the information in the possession of respondant.
        i do not find acas helpfull, i asked acas how many cases employee have won with your help. acas did not reply me. law centres i have to wait for months just to see somebody first time. and told me in advance they cannot take my case, they are full.

    • Jay Saunders says:

      I have to concur with this person. We are currently going through a grievance which is looking to be going to an Employment Tribunal. It has really taken its toll on the whole company and effected our business and personal lives. The real gripe is that the whole case we are dealing with is based on small meaningless points. Business is hard right now and businesses are trying to adapt to the situation. As a company we want to improve but we are finding it hard with the current set of employees. Employees do not like change!!
      I think the government should look into this and help small businesses. I am now seriously scared of taking on any new employees. We need people as we are growing as a business but what we are going through presently puts us off growing the business.
      Small Businesses do not have the resources to deal with cases properly.

    • Chris says:

      You sir are talking rubbish. The balance of bad employer and bad employee is probably the same however Employers are increasingly taking advantage of employees. I witnessed my staff stealing, copying and selling pornography, involved in indecent assaults, theft of artefacts, cover up of theft, bullying staff into dropping legitimate grievances and lying on HSE accident at work RIDDOR reports. Most of this involved my management in local government. Because I refused to retract my accusations I have taken them to ET but now they are using mental health as a tactic to strike out my case.

      • Tammy Beaton says:

        chris seems we are in a similar situation…i witnessed all you say – i whistleblowed – then faced false allegations and was dismissed – the employer provided falsified RIDDOR reports and edited emails – they did not bank on me having the originals! the aexual abuse on the children 26 months later still remains un investigated – i have dicta phone evidence and signed confessions – my ET has started – 8 day hearing Fed 2015 – i have had 1 case management so far – another later Oct, the employer (a large local authority) asked me to make a settlement offer???? they came back and offered me just 9% of what i asked for – i clearly said no – the ET will continue but i am so stressed, demotivated, sad and weak i may not have the will to survive never mind fight – i must try – my case is so strong – but they are pushing me – demanding long reports – all i do is cry and feel scared – i must win this – i did nothing – children were abused in their care – i have undisputed evidence – bloomin pay up! lol
        today is a sad day – tomorrow i will be stronger to fight – i know i will win – but it will kill and break me in the process

      • Jennifer Brown says:

        Hi Tammy
        I expect you can see from other contributors the employment tribunal system is weighted against the employee especially if it is a PIDA claim. The judge has no interest in what the whistleblowing concerned or whether the employers followed their own policies in regard to safeguarding the vulnerable or the whistleblowing policy. I was also up against a local authority who of course hired a barrister. Unions do not like whistleblowers and provided me with a solicitor who had no interest in looking at my evidence so like you I had to represent myself.

        At first I felt the Judge was being very fair but as it turned out that was not the case. You can read the comment I made in 2012 and this was after a third of the way through the tribunal. It concluded in August 2013 and I was given the decision in December 2013 made by the Judge and only one of the panel members as the other was taken ill soon after the end of the hearing. I agreed to this as the alternative would no doubt have been a retrial if the panel member was unable to return and carry on.

        I lost my claim and in the judgement the judge states that because of something my solicitor did or didn’t do he could not take into account the fact policies and procedures were not adhered to during my disciplinary and neither was he interested in the fact that the POVA was not handled properly or that the complaints policy was not followed when I complained about it. His judgement contained many inconsistencies some of which went contrary to judge’s orders and agreements made during case management discussions and during the hearing.

        Because of the above make sure you keep copies of any judges orders made during the case management discussions and any that are made by him during the course of the actual hearing and make sure that they are put in the bundle as without them should you wish to appeal they will not then be available for the appeal judges to scrutinise. The judge felt these documents unnecessary to have in the bundle. I did not appeal but have continued to call for an investigation into how the authority failed to follow POVA (the protection of vulnerable adults). The respondent committed perjury on the stand and failed to disclose important documents which would have proved this. I was unable to persuade the judge as to the importance of documents I wanted to put in during the hearing.

        Do you have legal cover with your house insurance or try your union for help (if you are a union member and they may act differently to mine)? Look up “The Whistler” a group set up to help whistleblowers and they may have some good advice or at least point you where you might get some help and “Compassion in Care (charity)” They are both fighting to have something called (Edna’s Law) to be put in place as the PIDA does not protect whistleblowers and neither does the Employment Tribunal system. Local authorities cannot be trusted to act with openness, honesty or integrity and they are able to pay for any legal help they need whether they are in the right or in the wrong.

        Do not give up, you did the right thing speaking out. The respondents will not want to put your evidence in front of the judge and neither will they, if can avoid it, put forward witnesses that would help your case which can cause you problems using some of that evidence.

        Good luck and google “The Whistler” and “Compassion in Care”.

        PS I understand how H Qazi feels there is no justice the majority of times for the employee who is unrepresented and does not have the funds most employers do.

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  10. Jennifer Brown says:

    To H Qazi, as you were a union rep why are they not providing you with legal representation?
    I was a whistleblower in care home, my union were half hearted in their support before and after I was unfairly dismissed for Gross Misconduct; the solicitor they gave me would not look at the documentation I had put in front of the diciplinary hearing or the appeal hearing; he would barely speak to me and in the end I had to represent myself as the union would not allocate a different solicitor. My case is part heard.
    I asked for material under section 7 of the Data Protection Act and discoverered information about the actions of the management and HR in response to my letters. There is so much material and the tribunal does not like a lot of documentation so I am in a quandry as to how not to alienate the panel yet retain the evidence I have that proves they acted against me to coverup their failures in not following the proper procedures when investigating abuse and bad practice in the home. It’s a long story but similar to you I was suspended on a pretext that they cannot substanciate. I would lose if only what the respondents have put in was all that was seen but I should have a chance if I can persuade the judge (he has seen quite a lot during the questioning of 5 of their 7 witnesses) to allow my material and if I can keep myself together. The judge appeared fair during those 3 days and put up with the fact I had only made 4 copies of everything instead of 6 (I had thought and read that at an unfair dismissal the judge sat alone), because the respondents had 7 witnesses and I had 2 it was decided, unbeknown to me, the case was to be heard by a panel of 3. This meant when any of my stuff had to be looked at the panel had to take it in turns to read it. I had been unaware how little the respondents were putting in of my material until 3 working days before the hearing and was told the following day that the respondents had no objection to my bringing to the hearing any documents already disclosed to them for the judge to decide whether they were relevant.
    I wonder has anyone else had this happen and how they dealt with it ( I went to pieces but was threatened with costs if there was a postponement)? If I did not attend the hearing it would go on without me and I would lose and if I had attended and could only refer to what they had put in the joint bundle then I would again have lost as very little was put in that I had put in front of the diciplinary hearing or the appeal hearing. I mistakenly thought that this material would automatically be put in without argument but that was not the case. I expected trouble with the documents I received from my employer under Section 7 as some of this was very damning for them. I was forced to have what was vertually my own bundle put together and copies made. Thank goodness there was a photocopying service open on the Saturday. Hundreds of pages were involved.
    Is having all this material a blessing or a curse? H Quzi or anyone else have any of you managed to get anything useful under Section 7? If you have not thought of this then if there is time it’s worth a shot. I wonder, if you do go ahead with your case after their last communication to you, you may be able to take them on for perjury if you later ask for data concerning yourself that they have and there is proof they lied at the hearing. You have to pay £10 when you request the information and if you go onto the Information Commissioners Offiice web site you will find out more. They (ex-employers) will have 40 days to give you what you ask for. If I were you I would do it anyway you may be surprised what you find out. Just an idea.
    All the best and good luck

  11. As a employer for over 20 years, I see an essential cultural problem. Terminations are by necessity always instant and therefore shocking. People are always surprised, feel betrayed, and are very upset about their loss of income and have time to nurse a grievance. (People going straight to a new job, or in receipt of severance pay rarely claim.) So the instant reaction is to hit back rather than negotiate. Their feeling of betrayal also changes their opinion of the employer from reasonable to unreasonable, and they usually cut off informal channels of resolution.

    ACAS do help, but many employees have never been in this situation before, and do not know how to go about opening negotiations. So as an employer, the staff handbook should contain a ‘what if I get sacked’ section.

    I have found that regular no-holds-barred open appraisals help enormously, but of course some employers find this very unpleasant work. A failing employee should be asked if they agree with the negative aspects of their appraisal, which must be quite specific. Do they have trouble with their training, do they have external welfare issues? Are they in the wrong job? Do they have any grievances?

    People are your most important and usually most expensive investment, so just as you maintain equipment, you should maintain staff. If it gets to tribunal, most cases will cost a winning employer as much in legal fees as if they had settled informally.

  12. Lynda guy says:

    I worked for 14 years for my employer and was loathed in taking the decision to sue for constructive dismissal but they not only breached my contract but my line manager lied to me and lied about me leaving me with no other option. I attended 2 of the procedural 3 grievance meetings and following one of these meetings was rushed to A&E after I collapsed with extremely low blood pressure. I was told that it was due to stress related issues and I have no doubt they were right. Waiting for the hearing has taken 6 months and cost me £1200.00 in fees not to mention the loss of my salary and can only claim £71.50 per week JSA but the biggest loss is my trust, self esteem and pride because I have worked all of my life and never been dismissed or left a job on such awful terms. I felt I had nobody fighting my corner and the HR and ACAS were as much use as a chocolate teapot but I need to find fairness and closure and would be letting myself down so badly if I just accepted their treatment and not get my opportunity to tell them how utterly miserable and surplus they made me feel. They can hide behind their posh titles and company money and it won’t cost them anything to go to a tribunal but my self respect and pride are important to me and I simply have to carry on even though I’ve cried a great deal and lost a lot of sleep I simply will not just give up and sacrifice my principals and values because of poor management. I honestly think there are no winners but I want to be able to put my head on my pillow each night knowing i fought the fight for fairness and at least be seen for trying.

  13. Lee says:

    Very good article.
    An ombudsman style approach would be a much better and cheaper way of resolving workplace disputes.
    Employment tribunals are supposed to put the parties on an equal footing but anyone who has had the experience of having to represent themselves against a barrister led employer will know how much fun that is.
    What is needed is a simplification of what the law is so that you don’t end up being told you stand a 51% or a 49% or a 50/50 chance of winning depending on how good their lawyer is and whether the judge likes you or not.
    In particular there needs to be more clarity around the ‘Some Other Substantial Reason’ category of dismissals which seems to be on the increase lately. It was never intended that an employer without a fair reason for dismissal could rely on SOSR, but one with a large bank account and expensive lawyer will certainly have a go.
    And what are their chances of defending such a case- why 50/50 of course because the only sure winners are the lawyers.

  14. Ash Kamal says:

    I sat and watched the Metropolitan Police abuse its position in an Employment Tribunal where an unfunded claimant with only pro bono support suffered lack of disclosure, evidence tampering and worst of all expose that their second most senior named respondent witness, a Chief Inspector, hid his arrest during the live racism ET. It was only after reading about his dismissal in The Sun 17 months later was it uncovered by the claimant. The hugely taxpayer funded MPS solicitor refused to answer whether he knew and the head of the MPS Directorate of Professional Standards uninvitingly intervenes and spoke on his behalf. The counsel also denied knowing but neither will ask their witness who was ccd on all mails and their client the Met Police why despite the DPS investigation being supervised by the IPCC..The MPS, right up to its heads, wont answer.
    So much for the rule of law – the case was fought with dishonesty and despite stating that they won on a powerful judgement that was full of contradictions and holes, the MPS want to go to mediation after the case even though the police Federation had stated officers had not told the truth.. Go figure – if any legal professional doubts me feel free to look at the audits..

  15. Valerie June says:

    I have found the article and responses very interesting. I am writing purely from personal experience. Just over a year and a half ago I was escorted out of an organisation following a new line manager’s continued harassment, malicious gossiping, refusing to provide me with up dated clearance to attend meetings at my place of work and undermining and trumping up of situations. I was also dealing with very stressful personal situations which I was unable to get support in the office because of the atmosphere she was creating. I was leading on a high profile project and she was up for promotion. I was frightened to look for another placement given the economic climate in my sector so I staid.

    When I protested formally I was unceremoniously walked out of the door having to suffer her cohorts lining my exit. Although I had worked at the organisation for nearly five years it was under a fixed term contract as a “consultant”. The reputational damage for me given the format of my departure was immense and in my darkest moments irretrievable. I felt I had no option for my own emotional self preservation but to seek redress. I took prompt legal advice, and, funded by a household insurer, I went through a year of the Tribunal system to finally be awarded a £20k pay out for back holiday pay as I was classified as a worker although I lost on all of the other claims mainly because of my employment status.

    From the first 5 minutes of the hearing the judge displayed considerable bias towards my counsel. The line manager had little, if no evidence to back up her statements, in contrast I had a clear audit trail of incidences. There were also a lot of strategic games from the ex-employer’s legal team including losing my ability to call supporting witnesses.

    The pay out has helped me take time some time out however the reputational and emotional damage remains. I am not sure I would recommend the tribunal process to anyone seeking redress. Better common sense and decency had prevailed and she had overcome her vindictiveness, allowed me a dignified exit and none of this would have taken place. I am also intrigued to know whether any in the organisation has ever questioned whether the situation justified £k on legal advice and a pay out. But I doubt it.

    I plea for the increased use of ADR to stop this madness, cost and distress. Ideally the line manager concerned should be removed from the process immediately and an independent person bought in to hear both sides of the story and recommend a resolution. I thought this was the role of ACAS however not once did I have contact from them throughout the process. This would also reduce the impact on SMEs.

  16. H Qazi says:

    East London employment tribunal judge was defending the defendant. Employment appeal tribunal agrees with judges decision. cannot get justice because I am poor. horrible.

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