How fair is the Employment Tribunal?

Many people ask our Employment claim solicitors how does the Employment Tribunal work, and whether the Employment Tribunal is fair. It’s understandable: as any UK Employment lawyer will understand given that if you are considering making an Employment Tribunal claim you are likely to already be feeling upset and vulnerable following the treatment you have received by your employer. In this situation, the last thing you need to feel is that the Employment Tribunal might not be fair. Our London employment law solicitors have put together a guide to Employment Tribunal procedure so if you’re considering a claim, you will have a better idea of what to expect.

Bringing an Employment Tribunal claim

The rules around bringing an Employment Tribunal claim are set out in the Employment Tribunal Procedure Rules. These rules govern every aspect of your claim from the forms you need to use to bring your case, to the procedures at the hearing and cover things like documents that are needed for your case, and costs in Employment tribunals (if you win your case, the other side may pay your costs – the Rules set out the circumstances in which this happens).

The Employment Tribunal Procedure Rules apply to everyone involved in a claim – not just the person bringing the claim (the Claimant) – they also cover the employer against whom the case is being brought (usually called the Respondent). As solicitors specialising in employment law for employees will be aware, the rules are designed to put both the Claimant and the Respondent in an Employment Tribunal claim on a level playing field. If one side or other does not follow the rules, they may find that the Employment Tribunal will take action.

No fees improve access to justice

Unlike some types of legal claim, there are no fees payable to bring an Employment Tribunal claim. Fees were introduced in 2013, but in 2017, the Supreme Court ruled that these were unlawful, so fees were immediately abolished. It is possible that fees may be re-introduced at a later date, but will have to be on a much fairer basis than the previous regime which was found to block access to justice.

What about Employment Tribunal judges?

In the Employment Tribunal, your case will usually be heard by a panel of 3. There will be a legally qualified Employment judge, plus 2 ‘lay members’ – one of the lay members will represent employer organisations, the other employee representations. In some cases, there will just be an Employment judge with no lay members – your Employment claim solicitors will be able to advise you on whether your case will be heard by a panel or by a judge sitting alone.

Fairness at the Employment Tribunal hearing

If you have had no experience of going to court, the Employment Tribunal can feel intimidating, even though it is less formal than other types of court (for example, no one wears a wig!). It’s important for claimants to understand that they will be asked lots of questions – some of the questions may be difficult, and you may feel awkward answering those question, but your legal representative – if you have one – or the Tribunal judge – may step in if the questioning goes beyond what is relevant for the hearing of the case. Remember that you will also be able to ask those difficult questions you want to ask of your employer.

In a recent case, the Claimant appealed the decision of the Employment Tribunal because of the behaviour of the Employment judge during the hearing. In Kidd v Commissioner of the Metropolitan Police, the Claimant, Miss Kidd, became upset by the ‘forceful, condescending and sarcastic way’ the Employment judge had questioned her. She also complained that the Employment judge had shouted at her legal representative and called her lazy.

The Employment Appeal Tribunal considered that the questions the Employment judge had asked were relevant, not unreasonable and not hostile to the claimant. Turning to the behaviour of the Employment judge towards Miss Kidd’s barrister, the Employment Appeal Tribunal judge did accept that the Employment judge had raised his voice and not let the barrister finish. He commented, in his decision ‘I think it is fair to say that he [the Employment judge] may have gone a bit far and a bit hard in his [written] comments’, which included suggesting Staunton had been lazy, and he 'may have said more than he strictly needed to about her conduct’. However, this did not mean that he was biased against the Claimant or that she had not had a fair hearing.

The appeal process

The other thing that’s important for Employment Tribunal claimants to remember is that if you are concerned that there has been unfairness in the Employment Tribunal proceedings, you have the option to appeal – as Miss Kidd did above. The Employment Appeal Tribunal – and ultimately the Court of Appeal and Supreme Court – are there to ensure that the law is properly applied. This means that even if there is a problem before the Employment Tribunal, it can be resolved. Although appeals are not ideal and can take some time, the option is at least there.

If you are looking for an Employment solicitor in London, OTS Solicitors are here to help. We can offer advice and representation to employers and employees in all types of Employment Tribunal claim. Book an appointment to discuss your employment law issue with one of our top London employment lawyers by calling 0203 959 9123.