This Sunday I shall be running the London Marathon to raise money for the Free Representation Unit (where I work as Legal Officer, Employment).

We provide pro bono representation in social security tribunals and employment tribunals to people who can’t afford lawyers. We do this primarily by training and supervising law students to take cases, giving them a chance to get valuable experience. This lets us do about 800 cases a year, making us one of the biggest providers of free representation in the country measured by work, although we have only five full-time staff.

It’s a good cause, and I’ll be running a rather long way, so I’d very much appreciate any support you can give.

Donations can be made via Justgiving.

Statistics are a dangerous way of looking at legal issues. While they tell us a lot about claims in general, they don’t tell us anything about an individual case. Since we are almost always concerned with a particular case this means they are often misleading.

For example, say that two claimants, Adrian and Ben, look at the 07/08 statistics on unfair dismissal awards. They both see that the average award is £4,000 (in this case the median is more useful than the mode). Adrian is being offered £2,000; Ben is being offered £7,000. On the basis of the statistics, Adrian decides his offer is much too low; while Ben decides to accept his. What the statistics can’t tell them is that Adrian’s case is weak and worth almost nothing, while Ben’s is strong and worth a lot. Adrian should jump at his offer, while Ben should hold out for more. The statistics obscure this.

Bearing this warning in mind, the statistics can be revealing.

One area that they are interesting is in relation to costs, in particular costs threats. A costs threat is a letter, usually from a respondent, that says something like “Your case is rubbish. If you don’t withdraw it, we will apply for costs”. These letters try to do two things. Firstly, they set up an application for costs later, since the Respondent can say “We told him his case was no good and we were going to apply for costs.” Secondly, they put pressure on the Claimant to withdraw or settle for less than they want. Normally, the latter is the main point of the letter.

There is nothing wrong with this in principle. It is perfectly normal to put pressure on a party to settle and, if a claim is weak, a costs threat is a good way of doing this. But such threats are often abused. Some respondents (and their solicitors) will send out a costs threat regardless of the strength of their case. These letters try to suggest that costs awards are both common and large.

The statistics tell us that neither of these things is true.

Costs awards against claimants are not common; they are rare. 327 were made between 1st April 2007 and 31st March 2008. During the same period 189,303 claims were brought to the tribunal. The two statistics do not quite match up. Some of the costs awards will have been made in cases that started before 1st April 2007; and some of the claims started during the relevant period will have costs orders made after 31st March 2008. Nonetheless, the statistics suggest that costs are awarded against a claimant in about 0.2% of cases brought.

During the same time period, 35,210 claims were dealt with in a hearing (i.e. they were not withdrawn, settled, struck out without a hearing or subject to a default judgment). This suggests that just under 1% of cases that go to hearing lead to costs against the claimant. Just how unusual this is can be seen in the graphic below:

This does not mean that there is a 1% chance of costs being awarded in any particular case. If you have a reasonable case and run it properly, the chances of costs is infinitesimal. If your case is misconceived and you run it unreasonably, the chances are much higher than 1%. But the common implication from respondents that cost awards are routine is simply not true.

If costs are awarded, how much will you have to pay? Costs threats normally imply that will be £10,000 or only slightly less. In fact, the majority of costs awards against claimants are £1,000 or under. And if you look at costs awards between £1 and £1,000, many are at the low end of that range.

Again, these statistics will not help you if you run up vast costs for the other side by acting unreasonably, particularly if you are in a position to pay them. But they do show that, in most cases, any costs order will be much less than the respondent would like you to think.

Daniel Barnett’s email employment law bulletins have been running now for 10 years. To celebrate this milestone, he is fundraising for Starlight, a charity dedicated to lighting up the lives of seriously and terminally ill children by granting them their dearest wishes. He has asked us to help spread the word – which we are very happy to do.

Please visit Daniel’s website to find out more about his appeal.

What do you wish someone had told you when you were a beginner?

• Don’t feel you need to go on and on to keep your client happy; the shorter the better.
• Watch the judge’s pen and don’t race ahead.
• Be the honest guide of the tribunal.
• Don’t be too expressive; don’t slouch, don’t yawn.
• Be nice to opponents; nothing is to be gained by hostility inside or outside the tribunal.
• It’s often quicker to fight a case than settle it.

What do you think beginners do wrong most often?

They fail to structure the argument sufficiently well. Think carefully about structure of your arguments; the structure sometimes wins a case; it will certainly assist if you have a good logical order to your presentation and tell the tribunal at the outset what you are going to deal with.

The long-awaited repeal of Part 3 of the Employment Act 2002 and the Employment Act 2002 (Dispute Resolution) Regulations 2004 takes effect today. The provisions were ill-thought out, over-complicated and almost universally unpopular: see (e.g.) Ding Dong the witch is dead!

It would be nice to be able to say that the regime had simply been swept away as if it had never existed, but unfortunately unmaking bad law is never as simple as that.

One difficulty is that the law has to change on a particular date, but there will always be cases where some of the relevant events happened before that date, and others after. That means there have to be what is called ‘transitional provisions’ – rules about what happens to cases caught between the old system and the new. Besides, face has to be saved; the Department responsible has to pretend at least to think there is something worth salvaging out of all the time and money it wasted changing the law in the first place – so saying “whoops, sorry everyone, bad idea, let’s just go back to how we were” isn’t an option.

We’re working on a brief guide to the new regime and the transitional provisions, which we’ll publish here before too long.

A previous post gave our take on electronic surveillance of employees. In the March issue of the ELA Briefing, Akhlaq Choudhury provided a useful overview. Akhlaq and the Briefing have kindly given us permission to make it available here:

Employee surveillance: what are the limits?

As is by now well-known, the Employment Act 2008 abolishes the much-criticised dispute resolution regime with effect from 6th April. Surprisingly little comment so far has been attracted by late amendments to the Act, which bring in a new requirement to make a formal ‘lament’ in relation to any complaint that is to form the subject-matter of a tribunal claim.

In contrast to the old ‘grievance’ rules, the procedures are straightforward and commonsensical. They also have the merit of reflecting in some respects what many parties to employment disputes already do.

Key practical points are as follows:

• A lament must be sent to the employer after an interval of 11 ¾ weeks after the first full moon following the Sunday immediately preceding the act complained of, but not later than 3 months after the act complained of.
• The lament must be typed, single-spaced, on A4 paper, and must run to no less than 10 pages (which must be set out, for clarity, in a single continuous paragraph) plus appendices.
• Appendices to the lament must incorporate all emails ever sent by the employee to the employer, together with their attachments, plus a proportion, not less than 15% of the total, of emails sent between other parties having no bearing on the dispute.
• The employer must arrange a meeting at which the lament will be heard. No more than 30% of the complaints raised in the lament may be discussed at the meeting, and at least 75% of the meeting must concern matters not raised in the lament.
• During the meeting the employee must undertake a formal rending of garments and tearing of hair. This should last for a minimum of four and half minutes and a maximum of two hours. The length of time should be proportionate to the seriousness of the complaint.
• The employer may also rend their garments, but may not tear their hair. Neither party may rend the other party’s garments, although mutual tearing of hair is permitted in cases where the lament does not include a complaint of previous physical violence.
• A lament may be carried out by a representative, provided that they are a qualified solicitor or barrister. Other representatives may not lament on behalf of their clients, but may join a lament already in progress. The Bar Council has launched a consultation, expected to report in the early months of 2014, on whether it is proper for Queen’s Counsel to lament.

  Failure properly to lament will mean that a claim cannot be heard until the claimant heaps ashes upon his head in front of the tribunal; ashes suitable for the purpose will be provided on request to the clerk. An employer who fails to co-operate fully with a formal lament will have his lands seized and ploughed with salt.