Part 2, you can read Part 1 here.
I have spent nearly six years in the employment tribunal system, among its arcane procedures, lack of records, complicated appeals, and insane bureaucracy. I have witnessed at first hand the cosy relationships between the professionals within the system.
This is not a user-friendly service. This is not a service that supports us – the workers and whistleblowers.
No one speaks for the litigants. We have no representation legal aid or support. Lawyers work mostly for the employers. And they and the judges are all in the same community of practice.
Even in the so-called user groups, it is judges and lawyers who run things. There are no claimants in them, others claim to speak on our behalf. As a result, our concerns are backtracked and side-lined, while many continue to suffer grave consequences or even prosecution.
We face many obstacles.
A proper record is needed
One way to ensure that claimants get a fair hearing would be for a proper record of proceedings to exist. And indeed, the courts were supposed to start recording proceedings.
The Civil Procedure rules are quite clear: At any hearing, whether in the High Court or the County Court, the proceedings will be tape recorded or digitally recorded unless the judge directs otherwise.
Instead, as journalist David Hencke recently said: “New information has emerged showing how HM Court and Tribunal Service has backtracked and pussy footed over ending the scandalous failure to provide proper recordings and transcripts at employment tribunal hearings.”
Her Majesty’s Courts and Tribunals Service (HMCTS) confirms that tribunals are encouraged to use equipment where they have it but cites cost grounds as the apparent reason for the delay.
This contradicts information from the Senior President of Tribunals which has indicated over and over again that funding for the recording of hearings has been already allocated and decided.
For example, The Modernisation of Tribunals Innovation Plan 2019/2020, states that the objective is to “provide a record independent of the judge and panel members which is capable, where appropriate, of transcription.” Recording was due to be rolled out between April 2019 and March 2020.
The president outlined several benefits, including judges not needing to take ‘verbatim notes’, transcripts being provided to parties, and incentives for parties to behave better in court. A budget was agreed for recording equipment to be installed in all courtrooms, although there is no timeline agreed. Delays were reported in November 2019 because of the need to identify the right equipment to buy.
The pandemic has shown tribunals can adapt swiftly if needed. For example, it moved to video hearings, from which audio recordings can be made and downloaded. But habit seems to keep the courts working as they have always done.
Recordings which claimants make themselves are inadmissible, more than that, the makers may be prosecuted for making them, even though they contain the evidence claimants need to back up their appeals.
But in some cases judges have allowed them. On 11 October 2019, a ruling stated that “covert recording has become a fact of professional life.” Judge Master Davison declared “the court is presented with the problem (more familiar in the criminal and family jurisdictions than it is in personal injury litigation) of evidence which may have been obtained improperly or unfairly but which is nevertheless relevant and probative.”
Even in my case, the judge accepted transcripts of my (workplace) recordings.
As things stand, therefore, claimants must secure a journalist, trained transcriber, or just a friend to come and take notes. This is not easy, so they often fall back on requesting the judge’s notes. I, like many other claimants, have tried requesting in advance a hearing be recorded, requesting hearing transcripts, or judges’ notes. Most requests are predominantly refused. I have even had requests for judges’ notes refused.
It was only on appeal I could finally use my own notes, by which time numerous discrepancies were revealed. The judge’s notes were handwritten, illegible with evidence impossible to locate – but the original judge had by then retired.
Conflicts of interest
A second obstacle faced by claimants in employment tribunals is the marked disparity in legal power between claimants and respondents.
In recent years, it has become the norm for employers to be lawyered up, while most claimants cannot afford to. On top of this, many of the legal representatives working for employers work within the court system and meet judges and presidents.
To outsiders, this can appear cosy and adds to the inequality in representation.
At one hearing, I faced three senior representatives, and on paper, a legal director who sits in the National User Group Employment Tribunals Presidents’ meetings. Whistleblower Alison McDermott saw her two powerful respondents represented by barrister, Deshpal Panesar QC, who is also a Chair of the Employment Appeal Tribunal User Group Judges’ Meetings.
Employers are being represented by lawyers who are part of the user groups. The conflict of interest is clear.
Discrimination via gender, disability and mental health
Finally, studies show that claimants face discrimination based upon gender, disability and mental health.
Research by the University of Greenwich covering tribunal decisions and gender shows women settling cases more often than men. The judgements, perversely, often recognised that the whistleblowing was legitimate but did not uphold unfair dismissal claims in the same cases. This happened in 25% of the cases brought by women but only 8% of those brought by men. Moreover, combined whistleblower and discrimination claims are less likely to succeed.
A second study from the Greenwich team showed less than a fifth of disability discrimination cases succeeding at a preliminary hearing. At the full hearing, “a claimant is almost three times more likely to fail than to succeed”.
Claimants with mental impairments had worse outcomes (and got less compensation) than those with other forms of disability. Claims failed because of court restrictions on extending time limits to bring cases, complex disability tests and the lack of representation, with claimants usually unable to afford legal representation. Legal aid representation is not available and few judges have experience with disability.
Even when the respondents lose, employment tribunals cannot force them to pay up. The study suggests that many employers feel able to ignore the rights of disabled people.
An equal footing?
The Employment Tribunals’ overriding objective is to “enable Employment Tribunals to deal with cases fairly and justly”, which includes ensuring parties are on an equal footing.
This cannot happen when access to information is restricted and legal representation is weighted against claimants. It also cannot happen when access to justice remains an issue for whistleblowers who face discrimination.
“In order to bring any claim to an ET a claimant must have knowledge of the law, the capacity to claim and not fear retaliation.” – Laura William and Wim Vandekerckhove
There are countless testimonies, including my own, of injustice and unfairness of the Employment Tribunals system.
My petition has been signed by over 1900 signatories so far – please help that number to grow.