The inequity of the Employment Tribunal system

Rampant cuts to legal aid, an inability to establish oneself as an ‘employee’ until 2 years service and a clash between generation and culture has led to the inevitable: an Employment Tribunal system that’s dated, unfit for purpose, inaccessible in effect and a minefield to navigate, which inevitably leads to the met objectives of over a decade of Tory leadership: an erosion of protection for workers, inequity in seeking justice and a free-pass for unscrupulous employers to get away with bullying, exploiting and threatening employees – confident in the knowledge that the said employee…can do sod all about it.

For the rich, not the poor.

Chris Grayling – famous for ruining… well, virtually anything he touches, found his infamous 2013 ‘Employment Tribunal fees’ policy embarrassingly overturned by the Supreme Court in 2017. This masterpiece policy introduced up to an eye watering £1,200 fee to bring a claim to the Employment Tribunal, even to fight for basic things such as asking for the Tribunal to rule that an employer must pay holiday leave or reinstate somebody dismissed for whistleblowing. Often, claimants were expected to cough up for declarations and not, like the Daily Mail would put it, claims for thousands of pounds in ‘Britens’ comp-en-sayshun kultcha’ 

This blatant attempt to lock-out those most vulnerable to the exploitation of unscrupulous employers was widely criticised at the time and rightly overturned following a claim brought by Unison. In effect, Grayling’s policy centred around the notion that ‘society’ should not have to pay for a system designed to protect employees from exploitation. Lobbied for by shady think-tanks and business interests, this policy had nothing to do with equity for the ‘tax-payer’, rather, it was all about protecting wealthy billionaires from employees fighting to assert their basic rights. 

The analogy I would use to describe this diabolical policy is to ask for users of the police service to cough up if they wish to assert their rights to access justice following an assault or a burglary – after all, why should all of society pay for the victim to access justice? 

However, despite this success and Employment Tribunal being free to access now, the reality is that… accessing the Employment Tribunal is still not ‘free’. 

Those who bring Employment Tribunal cases are rarely, if ever. In fact, there’s perhaps a less than 0.1% chance of being granted legal aid to bring about a claim to the Tribunal. Instead, vulnerable claimants who are in financial hardship as it is, because of the fact they’ve, well – uh, lost their job… can’t afford the legal fees associated with successfully bringing a claim. Solicitors fees can range anywhere between £50 for a shady lawyer to £500 for a good lawyer. These costs can get high, real quick, owing to complexities and the length of documents produced following an employment dispute, in-particular surrounding victimisation, bullying, harassment and unfair dismissal claims. 

Take things all the way to the Tribunal because the employer doesn’t want to settle, or you’re unable to agree to settlement terms, and you’re likely to have to cough up additional legal fees on a barrister. 

Lose your case – that money is gone.

Win your case – that money is gone too. 

How? You may ask. Well, judges are unlikely to award costs in Employment Tribunal claims and even if you settle before things get to Tribunal, you are still unable to apply for costs. This in effect means that most, if not all plus more of your compensation may well have been paid out towards your legal costs. 

I’m aware of a colleague in the past who brought an Employment Tribunal claim which cost them £13,000 in legal expenses and a whole deal of stress, and they were awarded £13,500 at Tribunal. All of their pain, suffering and weeks of preparation for the Tribunal was in effect, paid out to a lawyer. 

I’m not suggesting that this is the fault of lawyers – it is not, they are simply doing their job and getting paid to do so. However, serial cuts to legal aid under consecutive Government administrations, including Conservative and Labour, have led to a devastating impact on justice and people only seem to realise this once they’re in need of accessing that very system they’ve been convinced is a menace to taxpayers. 

Many people are unaware that they are unable to win back legal costs at Tribunal, so this bombshell hits them at the very last moment, when they realise that most of the money they fought so hard for, has already gone. 

Then you have unions – some, really good and some – awful. The PCS union for example, as one that I was a member of whilst in the Civil Service, did any and everything they could to avoid providing me with a lawyer. All of the monthly fees contributed towards membership amounted to nothing. This experience is echoed by several union members who simply are not provided with an employment lawyer, for whatever stipulation is asserted in their ‘insurance’ contract with the union. 

Two years – then you can sue 

Another mastermind Government policy is that you are not considered an employee who can bring an employment tribunal claim for unfair dismissal unless you have served at least 1 year and 51 weeks with your employer. 

This means that even if you are bullied, harassed and victimised out of your job, unless this victimisation is as a result of provable discrimination against a protected characteristic – such as sexuality, race, pregnancy, etc… and for very limited circumstances outside of this remit, such as – you are a whistleblower or have been dismissed as a result of trade union activity; you are unable to bring an employment tribunal claim. It doesn’t matter if your boss has micromanaged you, overworked you, teased you or anything else… you…cannot be ‘unfairly dismissed’. Oh and, even if one of those ‘protected characteristics’ is the reason for your dismissal – good luck trying to prove it, especially without any legal knowledge or experience! 

Not long ago, I was speaking to someone at the gym who was telling me about their troubles at work and how they are going through a disciplinary process for something that they did not do. He told me that he intends to “take them to the cleaners” and when I listened to his case, I said to him… 

“Strong case you have there, pal – seems a winner on the victimisation front… Good on you, how long have you been working there for?” 

“Just over a 18 months”

“Ah…Well…”

The look on his face at the realisation that unless he physically lifts his bosses up and takes them to a dry-cleaner – he isn’t taking anybody to the “cleaners”, is something I’ll never forget. It’s the look on many people’s faces when they realise that gaslighting by right-wing press and an erosion of their employment protections has indeed resulted in them not even realising that rights have quite literally been swiped away from under their feet.

Gym bro is a ‘new generation’ millennial fighting against oppressive management styles of the ‘old generation’. The modern worker requires autonomy, flexibility and trust – something that clashes with old leadership styles and risks creating a hostile environment for the modern worker, placing them at risk of bullying and harassment for simply daring to challenge the status quo. However; the reality is that there are slim grounds for a Tribunal claim.

Let’s say gym bro did serve over 2 years…

Know how to write a witness statement? particulars of a claim? log a claim with ACAS? manage timelines associated with ET claims? how to file an ET1? respond to an ET3? identify case-law relevant to your claim? navigate a preliminary hearing?

Yeah, me neither (Well, I do now… But… that’s a different story)

Navigating the Employment Tribunal process is not as easy as booking tickets on Expedia for a flight. Yet, nobody ever teaches you about employment rights and you’re left hung dry, on your own, with a ticking clock counting down the minutes until your claim is inadmissible. This maze in effect means that the Employment Tribunal is not accessible to all and without some understanding of the law and how it works, workers chances narrow further.

The sad thing is… I wish I could say things would change, but the sad reality of Brexit and the kinds of figures in power at the moment only means one thing… Further separation from the jurisdiction of the European Court of Justice and European Regulations on the protections for workers, thus less rights for me, for you…and for your children.