When employment tribunals were introduced in 1964, the idea was to provide a cheap, quick, accessible forum where employers and employees could meet to resolve any workplace disputes. There was no need for legal representation as they were set up as informal, independent judicial bodies, not bound by the formal, legalistic rules of evidence and procedure on which most courts are based.
Not so anymore. The scope, costs, timescales and complexity of tribunals has changed dramatically since they were launched and many claimants are now represented by others; be it a trade unionist, lawyer, tribunal specialist, or in some cases, a QC. Employers are also much more likely to hire a legal counsel.
As a result, HR professionals speak of the increasingly adversarial, legalistic nature of proceedings. “We see it as a court system now,” says Keith Luxon, HR policy and reward director at the Laurel Pub Company.
“I’ve been attending tribunals for 10 years or more and, in that time, I have seen a real shift away from companies representing themselves. Ten years ago, we would have felt that we could represent ourselves and get a fair result, but I wouldn’t dream of doing that now, except for the simplest of cases,” he said.
Many HR professionals are concerned that this turn of events has transformed the tribunal system into a battleground, where the side with the most experienced and aggressive representation wins. According to Luxon, legal wranglings have got in the way of the simple question of who is in the wrong.
“It has become too legalistic and about lawyer arguing with lawyer, rather than ‘Did the employer act right’, and ‘did the employee act right?'” he says.
Luxon thinks this prevalence of legal-speak has moved tribunals away from assessing a case purely on a clear presentation of the facts. While HR professionals complain the system has gone off track, lawyers say it is inevitable that solicitors have a prominent role to play now because employment law has changed so much.
“There is much more legislation now and the jurisdiction of tribunals has become wider so lawyers are needed to put forward complex legal arguments,” says Caroline Noblet, a partner at the law firm Hammonds. “It’s hard for laymen to understand the legislation as lawyers and barristers do.”
Where Noblet thinks the tribunal system has fallen down is with the number of ‘frivolous or vexatious’ claims that are allowed to go ahead. By frivolous or vexatious, she means weak claims that won’t stand up at a hearing and should be struck out before then.
Currently, the system rules that employers can ask for a pre-tribunal assessment for claims they think are questionable. If that assessment returns the same verdict, employees have to pay up to £500 to go to full tribunal if they want.
Incoming legislation should stop those types of frivolous claims at the pre-assessment stage, by not allowing employees to proceed just because they want to.
Mike Taylor, HR director at building services company Lorne Stewart, complains that it is hard to even be granted a pre-assessment hearing. “A number of times we have asked for a pre-tribunal assessment, but it has not been granted, which means that so many frivolous and vexatious claims get through,” he says. “The system seems to be afraid of turning anyone down.”
Where most lawyers and HR professionals are united is that no-win, no-fee law firms are harming the system and encouraging employees to pursue frivolous claims.
Employees know they have nothing to lose by going to tribunal, and Luxon says they also have the satisfaction of knowing that it will incur financial costs, lost working time and stress for the company involved. “It costs us £4,000-£5,000 every time we go to tribunal because of lawyer costs, but if you don’t have a lawyer, and a good lawyer at that, you are taking a huge risk,” he says.
Julian Hemming, chair of the Employment Lawyers Association (ELA), thinks there needs to be an accreditation process for tribunal practitioners, something the ELA is pushing for. “There are some people – HR and tribunal consultants – who are practising and don’t understand the law, and are not bound into codes of conduct the same way lawyers are,” he says. “There are some very good ones, but also some bad ones and I wouldn’t include trade union representatives in that. There needs to be a kitemark for people working in the tribunals.”
The increasing use of barristers is another bugbear of the HR profession. Some HR directors speak of cases where individual managers have been called for questioning and then had their testimony ripped to shreds in a highly personal, belligerent fashion by a barrister representing the claimant.
Taylor remembers one manager who was so aggressively questioned and criticised, that his confidence at work was badly dented. “It did have a short-term effect on him, but with my help, he managed to get over it,” says Taylor. “It can have a profound effect on people.”
Taylor thinks barristers should actually be banned from the tribunal process. “They have no place there,” he says.
The rules of conduct governing tribunals is not as stringent as in a court of law, meaning that the safety nets aren’t in place to automatically prevent overly hostile or inappropriate questioning. According to some HR professionals, this means the rights of both parties to a fair hearing are not always respected.
Some employers also use barristers, leaving the two sides to battle it out, but others fear that hiring a heavy hitter will cast them in an even blacker light in the eyes of the employment tribunal.
However, the actions of the chair are of paramount importance in these situations, as they are duty bound to redress any imbalances and keep the tribunal in order. Taylor says few chairs like it when a barrister is involved, regardless of which side the barrister is representing.
“If they see a barrister on one side, they don’t like it and will not let the barrister go too far,” he says. “It will actually get more sympathy for the other side and it forces the chair to give a lot of help to the other side in order to get justice. I once had a union turn up with a barrister and it didn’t do their side any favours at all. In fact, it helped us.”
Hannah Reed, senior employment rights officer at the TUC, thinks it is unfair and incorrect to say that unions have gone down the barrister route.
“We would agree that unions are more likely to use lawyers than was previously the case, largely because the growth of law, particularly EU law,” she says. “But it is only on very rare occasions that a trade union would use a QC. It would have to be a significant piece of law where a precedent needs to be set.”
Hemming agrees with Taylor that having QC representation is not always a good thing. “If you wheel out a QC at a first hearing, it’s a nuclear bomb approach. It’s seen as over the top and is not appreciated by the tribunals,” he says.
That said, he has used a QC, but says it was for a case where there were 400 Tupe applicants and the stakes were very high.
The pecking order of the legal representatives can also be an issue, with more junior legal counsels sometimes deferring to or being bullied by the more senior lawyer or barrister in the room. One Personnel Today reader says she had to replace her initial legal team at a tribunal with a QC precisely because of this problem.
That is what grates HR professionals: that sometimes, the verdict is decided on the basis of persuasive arguing, rather than the facts. However, Hemming thinks it is inevitable that this is a contributing factor. “As a rule of thumb, I would say that your advocate is worth about 30 per cent of the case,” he says. “It is not the critical deciding factor, as 60-70 per cent of the decision will be based on the facts, but it can swing it if you have a very good advocate and the other side doesn’t.”
Problems can arise if one of the party’s lawyer has a negative history with the chair as Luxon thinks this can prejudice proceedings. “Occasionally, we have changed the lawyer we’re using once we have found out who the chair was to ensure there was no hostility towards us,” he says. “You really are forced to play a tactical game.”
As chairs tend to stay in a particular region for some time, they can see the same employers coming to tribunal time and time again. While some may well deserve to be repeatedly hauled in, others complain that it unfairly prejudices the chair against them. However, Taylor thinks the real problem lies with particular tribunal offices, rather than particular chairs. “It is almost a geographical thing,” he says. “Bristol has become very anti-employer and pro-employee for example, while Cardiff love employers and hate employees.”
Whereas Taylor thinks employers used to know if they were going to win at tribunal or not based on the facts of the case, he now thinks it is a lottery that can come down to something as simple as geography. And as there is no recourse for appeal, apart from on a point of law, there is little employers can do if they feel the system is stacked against them.
Beverley Shears guest editor
Why I chose this topic
‘Tribunal cases are well documented in Personnel Today, and this week is no exception with the start of Stephanie Villalba’s case against Merrill Lynch.
As more tribunals hit the headlines, I want to look at the increasingly adversarial nature of the tribunal system.
There has been a huge shift in the tribunal system – where once the main consideration was to establish the facts now the focus is on the skill of the lawyers. There is now a huge risk of losing if a company does not match like for like – QC against QC, for example.
I believe that at their worst, tribunals represent a form of bullying. For example, line managers under questioning have no protection apart from that provided by the chairperson – in fact, they have less protection than if they were a witness in a criminal court.
I want to explore this as the adversarial system is doing tribunals a disservice. A tribunal is meant to be a hearing, not a trial.’