No. It does not.

There has never been much doubt about this. Any uncertainty has been put to rest by the EAT in Tao Herbs & Acupuncture Ltd v Jin.

Judge McMullen Q.C. said:

19. The third ground advanced in this application relates to section 123. It is contended that the award to the Claimant was not just and equitable because it was substantial. I reject this as a proposition of law. In the calculation of loss for unfair dismissal the prime consideration is the loss suffered by the Claimant attributable to the action of the employer. The vehicle for the submission today is that if this award has to be paid, the business will go into liquidation.

20. That is not the correct approach to the assessment of an award for unfair dismissal, which does not pay attention to the ability of the employer to pay. There are places in the employment protection canon where ability to pay is a feature (see for example the costs regime). But in the assessment of damages for a statutory tort, the possibility that the employer will be in difficulty paying an award is not a relevant consideration.

This does not add significantly to our legal understanding, but it is a clear and concise statement of principle. It might be useful, therefore, in convincing a stubborn respondent that this is not a line worth taking.

One word of caution: while ability to pay will not change the tribunal’s decision there is, unfortunately, a gap between obtaining a tribunal decision and getting the money. This needs to be considered when making decisions about litigation.

One of the things you do in a tribunal hearing is read how you’re coming over to the panel. Then you can adjust your approach accordingly. If they are with you on an issue, you may want to quit while you’re ahead. If they’re not you may want to redouble your efforts (or move onto a new point). The ideal is to spend the minimum time on matters where the tribunal is already convinced (or cannot be convinced) to focus on the areas where you may change their minds.

The problem with this is that it is easy to misread the tribunal.

The most damaging result of this is that you move briskly over an area – thinking that the tribunal agrees with you – when you should be dealing with it in detail. This leads to the horrible sinking feeling when you later realise that the tribunal was not convinced at all.

Of course, it is equally possible to speak on length on something that the tribunal is already convinced of. But this tends to be less damaging. This is partly because over-convincing someone of something is normally better than failing to to convince them at all. It is also because the tribunal is more likely to step in to move you on from a point they agree with than to ask you to go back to a point that they disagree with.

There is no absolute solution to this problem. You could simply deal with every point in exhaustive detail, regardless of your reading of the tribunal. But this is likely to do do more harm than good. A concise, punchy submission focused on the areas that the tribunal is in doubt, will be more convincing than anything approaching exhaustiveness.

Like many areas of advocacy, the only thing to do is to be aware of the potential problem and aim at a happy medium. Remember that, in the absence of a clear steer, it is hard to be certain what the tribunal is thinking. Be prepared to err on the side of caution, particularly on an important point. But try not to over-correct and risk boring the tribunal, losing momentum and obscuring your best points.

One of the things the employment tribunal can do if you win your unfair dismissal case is order your employer to give you back your old job (‘reinstatement’) or a different job (‘re-engagement’). The term ‘re-employment’ is commonly used to refer to reinstatement and re-engagement together.

These orders are pretty rare – probably rarer than they should be. See in general this previous post on the subject.

One point to bear in mind if you are asking for re-employment is the question when your employer is ordered to re-employ you. There are two reasons why this can matter:

Practicability

If your employer fails to comply with an order for reinstatement or re-engagement, you will be entitled to an additional award of compensation unless they can show that it wasn’t practicable to comply with the order. If your employer is ordered to reinstate you too quickly, it may make it easier for them to show that it wasn’t practicable for them to comply. So think about what they will actually have to do in order to give you your job back or (more likely) find you another one, and make sure the tribunal gives them plenty of time to do it.

Back pay

If an order for reinstatement or re-engagement is made but not complied with, the cap on compensation for unfair dismissal allowed to be exceeded by however much it takes to ensure that you are fully compensated for the period of time between dismissal and the date on which you should have been re-employed. The later that date is, the longer the period for which you get guaranteed compensation notwithstanding the cap. If your case has taken a long time to come on for hearing, or you were a fairly high earner, this can make a difference to the amount of money you get.

There are various ways of getting legal advice and representation without having to pay for it: see generally ‘Getting advice. But lots of people won’t have access to any of these, and there’s a large gap between being on such a low income that you have a chance of free assistance from a legal charity, and being so well off that you can easily afford to pay for legal representation at an employment tribunal hearing and in the run-up to it.

How much it will cost you depends on a lot of different variables: how complicated your case is, how much work you are able to do yourself (and how well you can do it), who you instruct, and so on.

But it will cost a lot. Very broadly speaking, you can probably easily afford to pay for legal representation if you can easily afford to buy a brand new sports car; otherwise not. Or to put it another way: lots of legal expenses insurance policies limit cover to £50,000. For a reasonably straightforward case, you shouldn’t need more than that; but if your case is long and complicated, or goes through several appeals, it can easily get used up.

Unfortunately, the more complicated your case is, the greater your need of professional assistance in running it; but also, the more expensive that assistance is likely to be. The result is that if you are trying to bring a complex claim against an employer or former employer, and you don’t have any source of free legal advice, you face a thoroughly unattractive choice. Either you try to run the case yourself, which will be difficult, and intensely stressful. Or you spend a great deal of money on lawyers, for an uncertain outcome – and at a time when your finances are likely to be under strain anyway. Good lawyers will improve your chances of success, but you can never be certain of the outcome of a case however good your lawyers.

A related problem is that if your case is complicated, you won’t even be able to get advice from a lawyer on whether they think your case is worth a significant investment without paying quite a lot for that advice. That’s because it takes time to read the papers, do any necessary research and form a view. So you may spend several thousand pounds at an early stage, only to be advised to drop your case on the grounds that it will probably fail anyway.

There’s no way around this: you will have to make hard decisions. Legal services are expensive, and bad news costs as much as good. The main thing is to keep a clear-eyed view of what you are trying to achieve and why, and get as complete a picture as you can as early as you can on what your case is likely to cost you in total.

Above all, resist the gambling trap – that is, the tendency to feel that once you’ve spent a significant sum on your case, you are in too deep to cut your losses.