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Please help me run 26.2 miles on Sunday

If only that was literary possible. It would be great to be propelled around the London Marathon course by the good wishes of hundreds of Employment Tribunal Claims readers (not to mention it would undoubtedly improve my time).

But, even though it isn’t literally possible, it is figuratively possible. I’ll be running the marathon on behalf of the Free Representation Unit, where I work as Legal Officer, Employment. Since 1972, FRU has done what is says on the tin: provide representation in tribunals for people who can’t afford lawyers. We do this by working with law students, thereby providing them with invaluable experience. It’s a win-win for everyone involved, but particularly for the 500 or so client who we help every year.

To do this, however, we do need a lot of support from other people, including financial support. And, basically, the marathon is a good excuse to ask (I also like to think you might be moved by my impending discomfort). Every little helps — if every reader of the blog donated 50p, I’d smash my fundraising target.

If you would like to contribute, you can do so through justgiving at: https://www.justgiving.com/reed2015

Also, if you’d like to leave an encouraging comment here, please do so!

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A historic date: Cross-Party Consensus on Employment Tribunal Fees

“I’m a big fan of John Maynard Keynes,” said David Cameron at his surprise announcement about Employment Tribunal Reforms with Nick Clegg, Ed Miliband and Nigel Farage. He said ‘When the facts change, I change my mind. What do you do, sir?’ It’s clear that our policy on Employment Tribunal Fees was a bit of a wrong turn. We all thought there’d be a modest decrease in claims, mostly the weak or vexatious ones, and hard working people who had decent claims would be perfectly happy to rummage down the back of the sofa for £1,200, or borrow from relatives, or maybe do a little part-time prostitution or drug-dealing. But once my advisers showed me the Dunstan Graph I realised we’d got it wrong.”

“Now, I know we’re going into an election, but not everything has to be party political. We’re all on the side of hard working families and we all think that British Business deserves a level playing field where good employers don’t have to worry about unfair competition from rogue businesses who are breaking the law. None of us are in favour of people who break the law (unless they’re our mates, and very wealthy).”

“That’s why I’m delighted to announce that, whatever party wins the election, we intend to repeal Employment Tribunal Fees immediately. It’s just the right thing to do.”

Ed Miliband agreed: “The Labour Party was founded to represent workers, and we’re true to our roots. That’s why we’re determined to make sure workers can access their rights. Tribunal fees prevent people getting access to justice so they’ve got to go. Frankly, the worst possible thing for us to do at the moment would be to focus on meaningless changes to the law that can’t be practically enforced, glib soundbites or hate-mongering against the powerless. There’s a crisis here and it would be real betrayal of the Labour Movement for us to fail to meet it head on.”

Nick Clegg, answering questions about the previously mooted review of Employment Tribunals answered impatiently, “You need a review when it’s not clear what’s going, on or you’re not sure what to do about it. This isn’t like that. We introduced fees, and claims fell off a cliff. I don’t think anyone who knows anything about the situation thinks there’s any other reason for the decline in cases. We got it wrong, but we’re going to fix it.” Asked whether it was possible that ACAS Early Conciliation had anything to do with the decline in case numbers, he refused to answer, saying ‘I’m going to assume that’s a joke. Have you looked at the statistics?’

Nigel Farage said, “UKIP supports this reform. The working man needs access to employment tribunals, in particular to combat the terrible social problem that is discrimination against white middle-aged men who like beer. That’s Intersectionality.”

David Cameron had the last word: “This announcement is about the Employment Tribunal Fees specifically. But, to be totally honest with you, I’m worried about what’s been going on in the Ministry of Justice for this to have gone uncorrected. I’ll be checking that we haven’t done anything else that might have caused serious damage to access to justice.”

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Ticking the boxes

The ET rules require an application to the tribunal (the ET1 form) to be ‘accompanied’ by a fee or an application for remission; but the online claim mechanism doesn’t provide any method of applying for remission at the same time – you have to send the remission application by post.

We noted in the 4th edition of ET Claims that this was a bit of a puzzle, and recommended posting the remission application the same day if possible – but in any event making sure it arrives within 7 days of the online claim.

This point was considered by the EAT In Deangate Ltd v Hatley (thanks to Daniel Barnett, as ever for the alert). Three claimants presented their claims online on the 2nd last day before the time limit expired. They hadn’t sent applications for remission with their claims – because there was no way for them to do so. But they had ticked the box saying they intended to apply for remission, and their applications were received within 7 days.

The Respondent tried arguing that the claims should be rejected because they weren’t ‘accompanied’ by the fee. Sensibly, the EAT was having none of it: ticking the ‘yes’ box counted as an application in the circumstances, even if an incomplete one; and it was reasonable to allow the claimants a further 7 days to complete their application

So our advice stands: send your remission application on the same day if at all possible, but in any event make sure it arrives within 7 days of your online ET1. If you leave it 8 days, the Respondent may well try this argument again – and might win it this time.

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Hold fast to your ET1

Your ET1 is the form you complete to start your claim — also known as the claim form.

It’s a vitally important document and it’s important you make sure you keep a copy of it. If you’re submitting online, you can do this by saving it to PDF when submit it electronically. If you post it, you’ll need to take a photocopy.

This all sounds very obvious, but I’m encountered a surprising number of cases where people have sent off their ET1, without holding onto a copy. I suspect the problem is that the wider world of the internet has taught us all that we’re bound to receive a confirmation email with the form attached. Unfortunately you don’t.

If you don’t keep a copy, contact the tribunal and ask for one.

On no account try to reproduce your original ET1 by filling it in again from memory. This will a) not work (you’ll never remember it exactly) and b) risks looking as if you’re trying to pull a fast one somehow.

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Do Claimants ever win in the Employment Tribunal?

Short version: Yes, they do.

Our post Is the tribunal system corrupt? now has over 100 comments. Most commentators disagree with our conclusion that the tribunal isn’t corrupt — and our wider opinion that, although undoubtedly flawed and imperfect, the system is basically fit for purpose.

We stand by our view. Yes, tribunals and judges do get it wrong sometimes. And, yes, there are some bad bits of law. But that doesn’t mean it’s evil or corrupt. It’s just that not much that human beings do is perfect.

Of course this is easy for us to say. There are some heartbreaking comments on the corruption post and we’re not trying to minimise or discount the emotional impact a bad tribunal experience can have. We’ve both seen too many of our own clients go through the mill for that. Both of us have on occasion become pretty angry about the way our clients – or sometimes parties, respondents or witnesses on the other side – have been treated.

Yet we are both convinced — and bear in mind that between us we’ve seen some thousands of cases — that there is no corruption, no general unreasoning hostility to claimants and, for that matter, no endemic incompetence from judges and members.

We’re far from uncritical fans of the system. But deciding that the tribunal is corrupt is a misdiagnosis. There are many problems — but that is not one of them.

In this context, it’s worth looking at the publicly available statistics on the outcome of tribunal claims. We’ve taken the following from outcomes of all types of claims in the last full year available 2013-14.

Most claims don’t actually reach a final tribunal hearing.

20%, one in five, is settled via ACAS. 53%, just over half, are withdrawn by the claimant. Most of these withdrawals, but not all, represent some form of non-ACAS settlement. So, in somewhere around two thirds of cases, claimants walk away with a negotiated settlement.

Only 3% of claimants obtain default judgment — judgment entered in their favour because the respondent failed to reply to the claim.

Rather more, 8%, have their claims struck out without a hearing. In the vast majority of cases this is because of failing to obey the tribunal’s case-management orders.

Only 14% of cases are determined at a hearing by the tribunal. In 2013-14 the results were split precisely down the middle. Half were won by the Claimant and half by the respondent.

Finally, a matter of housekeeping. The comments on this post, and on ‘Is the tribunal system corrupt?’ will stay open and people are welcome to express their views and discuss their experiences here. We do read every comment. And we won’t moderate comments unless they seem to us raise legal issues, such as libel or threats of – or incitement to – any kind of crime. We probably won’t get involved in the discussion, partly for issues of time, but mostly because we’ve said what we’ve got to say in these posts.

But we’re also going to try to keep discussions of these matters to the posts devoted to them. So, if you want to discuss tribunal corruption, incompetence or malfeasance, this is the place to do it. Off-topic comments on other posts are likely to be deleted from now on.

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Make sure you’re answering the real point

File this under advice that sounds like the bloody obvious, but can be surprisingly hard to follow.

During litigation, the other side will make all sorts of arguments. Generally, you’ll be predisposed to dismiss them as dishonest, daft or just mad. That’s a natural response to the adversarial nature of tribunal litigation — even if you’re a supposedly cool and emotionally-detached lawyer.

The trouble is that this means it’s all too easy to misunderstand what your opponent is saying, either because subconsciously you want to make it easier to dismiss or just because you reject it out of hand rather than thinking about it properly.

But you need to fully understand the points that the other side is making, so that you can counter them effectively. So you must do your best to overcome your first instincts.

Probably the most important part of doing this is simply to recognise the possibility.

But one other trick is, when you get an important document from the other side (such as the ET3 or a Notice of Appeal) read it three times. First just to see what it says. Then read it as sympathetically you can. Try to imagine that you’re someone who wants to agree with the Respondent. How would you understand what they’re saying? Finally, read it critically, with an eye to how you’ll respond to their arguments.

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Don’t conciliate too early

Before starting most kinds of proceedings in the employment tribunal, you have to notify ACAS of your potential claim and go through ‘early conciliation.’ Section 18A(1) of the Employment Tribunals Act 1996 says:

Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter.

The information you have to provide to ACAS is minimal: your name and contact details, your employer’s name and contact details, your dates of employment, and the date on which the event you want to complain about took place.

You don’t have to say what kind of claim you are thinking of making to the employment tribunal. That’s deliberate. Previous rules that said you had to raise a grievance before complaining to a tribunal got bogged down in endless arguments about whether the exact claim that the claimant had brought to the ET had been made the subject of a previous grievance. The ‘early conciliation’ regime is supposed to avoid all that, by just making you notify ACAS of a potential claim without identifying it.

But there are still some potential problem areas. One relates to ‘matters’ that only arise after you have sent in an early conciliation form. Suppose you complain about discrimination, and start early conciliation; and then you suffer victimisation because of the complaint. Can you complain to a tribunal about the original discrimination and the later victimisation without notifying ACAS again? Probably not. Until and unless the EAT says it’s not necessary, go through early conciliation again to be on the safe side.

If you’re thinking of complaining of constructive dismissal, bear in mind that there’s no ‘dismissal’ until you’ve resigned. So don’t contact ACAS until after that point. If you’ve given notice, wait until your notice period has run its course and you’ve actually finished work. Otherwise the tribunal may say it doesn’t have jurisdiction to hear your complaint because the ‘matter’ you are complaining about is dismissal, and you can’t have presented information to ACAS about ‘that matter’ as required by section 18A at a time when you hadn’t been dismissed.

If you have a current claim, and you notified ACAS before you resigned, you can do one of two things. You can carry on and hope for the best: the tribunal may accept that the ‘matter’ in question was whatever your employer did that prompted your resignation. Or, if you’re still in time for a fresh claim (in other words, if it’s less than 3 months since your employment ended), you can withdraw your claim, go through early conciliation again; and then present a fresh claim. If you decide to withdraw your claim, it’s important to make sure the tribunal doesn’t issue a judgment dismissing it: if it does, you won’t be able to bring a fresh claim. So your letter telling the tribunal you want to withdraw the claim should explain that you want to commence the same claim again after going through Early Conciliation, and asking the tribunal to exercise its discretion under rule 52 not to dismiss your original claim.

The choice isn’t an entirely easy one. If you decide to carry on and hope for the best, you may lose your claim on a technicality; but if you withdraw and start again, then (unless you’re entitled to remission) you’ll have to pay another issue fee.

If it’s more than 3 months since the end of your employment, but you started early conciliation before you resigned, you’re not in a position to commence a fresh claim. You’ll have to carry on and hope for the best. Don’t despair: this is a problem that might defeat your claim, not one that necessarily will.

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Try for re-employment

Everyone who has anything to do with employment law knows that reinstatement and re-engagement orders are incredibly difficult to get. They’re rare (really, really rare: awarded in something like 0.01% of successful claims) so mostly people don’t even bother asking. That means that even in cases where a tribunal might have made such an order, it doesn’t – because the claimant hasn’t asked.

But if you’ve been unfairly dismissed, you have lost your job when you shouldn’t have. It’s obvious that the best way of making that right is to give you your job back.

So if you win your unfair dismissal case, ask for reinstatement or re-engagement. Put the rarity of such orders out of your mind, and concentrate on the obvious justice of giving you your job back if you shouldn’t have been sacked in the first place.

This became more important with the reduction of the cap on unfair dismissal compensation to a year’s pay. If you’ve lost a modestly-paid job in circumstances that mean you’re going to lose a lot more than that (Michael gives an example of how this can happen here), reinstatement or re-engagement is the only way you can head off those losses. You could point that out when asking for reinstatement or re-engagement.

See earlier posts on re-employment here.

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Upcoming changes to fee remission

I’ve just had an email from the Ministry of Justice, promising changes on fee remission from 30th June. I can’t find an announcement online, so I’m providing the text of the email below:

From 30 June, you will see a difference to the HM Courts & Tribunals Service fee remissions form and guidance. Having listened to the feedback from customers and stakeholders, these changes will simplify the application process for users. The main changes you should be aware of, for any fee remission applications from 30 June are:

  • You no longer need to provide original copies of documents. We will accept photocopies.
  • You don’t have to tell us the exact amount of disposable capital you have just the relevant threshold it falls into.
  • Bank statements can be printed copies from online banking systems.
  • DWP letters can now be dated within the last three months. Previously, a letter from DWP confirming receipt of benefits for benefits-related remissions (fee remission 1) had to be dated within the last month.
  • A clearer, simplified form is now at the front of the guidance, with references to guidance notes.
  • If a piece of information is missing we will endeavour to contact you rather than reject the claim.
  • The new form should be used from 30 June. From 14 July you should no longer submit applications using the old EX160 form.

We continue to review the remissions system to make it easier and quicker to move through the system. We welcome any feedback to help us further simplify the process. Contact either: EmploymentJurisdictionalSupportTeamInbox@hmcts.gsi.gov.uk for Employment Tribunals orCivil&FamilyBusinessSupport@hmcts.gsi.gov.uk for civil and family.

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I am (I represent) the Claimant…

It’s easily overlooked, but, when writing to the tribunal, it’s worth making it clear which side you’re on.

This can easily be done by starting your letter:

Case No: 123456/2014 Reed v Cunningham

I act for the Claimant in the above case. I write to apply for…

This is particularly sensible if you’re a representative, since it will be far less obvious that Smith & Jones LLP is acting for Mr Reed than it would be if Mr Reed was writing as a litigant in person.

There is a wider point here. It’s always worth remembering that applications are dealt with by busy judges who are working through a pile of applications. Of course, the judge can almost certainly work out which side you’re on by the nature of the application (and if that fails they can search the file until they find when you went on record). But it’s worth making their lives a little bit easier if you can — if only because it might make them read your application a little more sympathetically.