Is it better to settle or fight an employment tribunal claim?
Narrowing the scope of Employment Tribunal litigation
The abolition of employment tribunal fees has led to a substantial increase in the number of claims issued in the tribunal. Many of the additional claims are being pursued by litigants in person; individuals acting on their own behalf with little or no expert guidance. Whilst some manage to present their cases in a relatively clear and unambiguous way, the majority of these claims are not so clearly presented and often raise the question of what it is that the claimant is seeking to pursue?
Whilst at first glance, from the perspective of an employer, the fact that a claim has not been clearly presented or set out may seem advantageous, this can often not be the case. A lack of legal expertise on the other side can result in an employer being caught up in a messy tribunal process that requires unnecessary and additional time, resource and money.
What is it about a claim made by a litigant in person that can make the process so difficult?
Often, a litigant acting in person will not complete the claim form properly meaning it can be unclear what the head of claim actually is. This can mean it becomes challenging for the employer to compile an appropriate response within their response form that clearly sets out their position in respect of the claim.
It is also fair to say that Tribunals often give litigants in person a degree of leeway in the manner in which they interpret the claim and may give the claimant the opportunity to set out a clearer position at a preliminary hearing and/or by filing further and better particulars of claim. It is not unheard of for seemingly “background” comments referring to, for example, an individual’s health, within the claim form to be used as a hook to hang a different head of claim to that which initially seemed to be the pleaded case.
Beyond this, many litigants in person, will often ‘throw the kitchen sink’ at their claim, including complaints relating to issues far beyond the normal 3 month Tribunal deadline or which have very little merit as a claim. Needing to respond to all of these issues throughout the litigation can be expensive and can provide a real practical challenge for employers; for example, key witnesses may have since moved on or the employer may need to retrieve and disclose substantial documentation regarding a minor point in relation to the context of the overall claim.
In this situation, instructing a legal expert is one of the most effective ways of limiting the impact of a tribunal claim involving a litigant in person on an employer’s time and resource. There are a number of steps that an expert will take to simplify the process.
Firstly, they will seek to clarify and limit the scope of what the litigant in person is pleading at an early stage in the process. When they first read the claim form they will be able to pull out all of the potential issues complained of, not just those clearly identified in the claim form. The next step is to make sure that the employer’s response adequately addresses all of the claims and potential claims. This may include bringing to the Tribunal’s attention the fact that elements of the claim may be out of time or have no reasonable prospect of success. They may seek to have a preliminary hearing listed for the Tribunal to consider these issues as soon as possible, to reduce the risk of preparatory work being undertaken unnecessarily.
Although requesting a preliminary hearing will require a hearing and will involve the employer incurring costs for representation at the hearing, the advantages are clear. If the hearing successfully sets out the claims going forward there will be no nasty surprises at a later stage if the litigant in person decides to argue that their claim was really about something beyond what appeared to be set out in the claim form. Alternatively, the hearing may remove a number of weak or out of time elements of the claim which then no longer need to be covered at later stages of the process including in disclosure, witness statements or the hearing itself; this can save substantial costs going forward as well as limiting the scope of the respondent’s potential exposure.
As an example, within the last month I have had two cases in Tribunal at preliminary hearing stage, where potential complex discrimination claims carrying uncapped liability for the employer have been dismissed prior to the substantive work on the case being undertaken. In both cases, this has left my client, as the respondent, needing to only prepare for briefer hearings relating to capped unfair dismissal claims, thus substantially reducing their exposure in relation to legal costs and potential liability.
Our team at Brachers was built upon a specific expertise in defending tribunal claims and we help employers by identifying the risks they face from the outset and putting in place a strategy for addressing these risks in a cost effective way. The Tribunal framework provides the parties with a number of tools, such as preliminary hearings, which they can use to ensure that the case is managed justly and at proportionate cost. In all cases, we seek to utilise those tools to ensure that the overriding objective is met and that our clients’ costs are contained.
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