After two and half years of litigation, being mentally ill and suffering further intimidation from my ex-employer, I was portrayed as the core problem within the organisation. I was threatened with costs of legal fees if I went ahead to an employment tribunal. My legal costs amounted to £62,000. I had to withdraw my claim because of further threats and illness. I came away from the experience more traumatised, with no faith in the legal system.
Employment tribunals (ETs) are meant to be independent judicial bodies set up to resolve disputes between employers and employees. These tribunals handle a range of employment-related issues, and should provide a fair and impartial forum for both parties to present their cases.
Claimants’ concerns in employment tribunals
The ET system in the UK is not without its challenges. Some of the problems and criticisms raised, especially from whistleblowers, state that ETs have no legitimacy. Serious concerns have been raised – to the media, MPs and the president of the tribunal about the lack of a court record and that fair and impartial treatment is simply not what is happening behind closed doors in ETs.
Trustpilot is the only place where ET claimants can log their complaints which are simply ignored elsewhere. They report that the rules are not adhered to, that they are not consistently followed and at times totally ignored. There are concerns about the oppression of whistleblowers, breaches of human rights, cover-ups, wasting tax-payers’ money, inconsistency in decision making and perversion of justice. Complaints have been submitted to the of the president of the ETs without result, with claims that the president is ‘marking his own homework’.
The complaints process is now being handed over to the Judicial Conduct Investigations Office (JCIO) from 31 October 2023, following a consultation in 2022 on the transparency of such procedures.
Employment tribunals can harm your mental health
If you decide to take your case to an ET, you may have to face serious challenges which can change your life, including possible financial ruin.
ETs have faced issues with significant case backlogs and delays in resolving disputes. At the end of the financial year in March 2023, 477,000 cases were outstanding. There are approximately 600-700 cases (with a peak at 1000) brought each week to add to the backlog. Some are waiting two years or more.
The delays cause mental health issues for claimants, who normally cannot work due to the debilitating effects of long litigation. In fact, the entire process of going through an ET is emotionally taxing, if not outright traumatic; the demands of producing and submitting case management orders (CMOs) alone is highly stressful. Some claimants state they will never work again due to the trauma.
Claimants’ concerns should be dealt with by the National User Group for Employment Tribunals, but they are not attended by claimants whose requests to the ET president to attend have been denied. There hasn’t been a meeting since September 2022 despite quarterly meetings in previous years.
Representing yourself? Be careful
While claimants can represent themselves in ETs without the need for legal representation, the process is so legally driven that claimants are facing an inequality of arms; huge legal fees potentially limit access to justice for some. If a Cloud Video Platform (CVP) hearing is not available, daily travel to and from the court can also be costly, not only for fares but also for taking time off work.
ETs are heard in a court of law, where you have to follow ET rules of procedure, swear on oath and be cross-examined by a King’s Counsel (KC). Employers may use KCs, and if public bodies, can use taxpayers’ money. You are expected, as a Litigant In Person (LIP), to understand complex law and complex processes and adhere to strict timescales to complete orders, or face the risk of sanctions where your case might be struck out. In some cases claimants are facing massive cost awards against them if they withdraw, lose merits to their case or lose altogether.
Both parties are expected to take notes at hearings, as audio or video recordings are against the law, unless authorised, requiring extra paperwork submitted in advance. LIPs are disadvantaged in this respect, whereas legal teams do this as part of their jobs. But the only notes that underpin the ruling and judgement are those taken by the judge.
Court records not available
Bizarrely these judge’s notes cannot be obtained by anyone, not even if the claimant wishes to appeal the judgement. There is no audio recording or a transcription taken, unless requested, but this is at the judge’s discretion and rarely granted, so there is no lawful mechanism to obtain a record.
A campaign was started with a letter to the Employment Tribunals Senior President in March 2022, signed by more than 300 doctors, journalists and whistleblowers, for ET proceedings to be recorded and official transcripts provided to parties to improve fairness and access to justice. A plan to introduce the recording of tribunals across the country has had little or no uptake, despite resources being available.
In this day and age of technology, where proceedings at Crown and Family Courts are always recorded, the question has to be asked – what valid reason could there be not to record and make available to all parties?
A petition is still live today to address the lack of a court record.
Witnesses against the claimant
Employers can bring witnesses to testify against the claimant to give their case more weight. These witness statements could be defamatory or vexatious, but are still being read by the judge and the panellists.
Witnesses for the respondent may then withdraw at the last minute, but their witness statements are not withdrawn (some are even unsigned). These are still used against the claimant by the respondent’s KC in cross examination, despite being allegedly untruthful but not contested. Although not much weight should be given to absent witnesses, their statements are still given consideration. There is no redress for any misconduct of witnesses.
Possible outcomes
Whistleblowing is a hazardous undertaking, with a low success rate. While ETs can issue judgments and awards, enforcing these decisions can sometimes be challenging, especially if an employer is unwilling to comply. There is the possibility that if an employer loses, they might simply go into liquidation or declare bankruptcy and start another company in another name.
Since 2017, there has been a public register of all ET judgments online, but this only publicises the outcome of the process, which states only what the judges write in their findings, not what the actual case was about.
It’s time for a change.
