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Is the tribunal system corrupt?


Between us we’ve got several decades of experience in employment tribunals. We’ve seen nothing to suggest there is any type of corruption or systematic wrongdoing going on.

But many people who go through the system are left deeply unhappy and with the sense that it has failed them. Some conclude that it is corrupt. It seemed worth addressing this explicitly — and explaining what we mean when we say the tribunal isn’t corrupt.

At the most basic level, you can’t bribe an employment judge. Admittedly we’ve never heard of anyone trying. Yet we’re absolutely sure anyone who did would be immediately reported to the police by the outraged judge.

Similarly, with extremely rare exceptions, judges don’t sit on cases where they have a personal interest or might reasonably be thought to have a personal interest. If they do, there will be grounds for appeal. There are no smoke-filled back-rooms where favours are exchanged or arms twisted.

We also don’t think that there’s any general prejudice against claimants (or for that matter respondents).

Employment Judges are doing what they claim to be doing: trying to decide each case fairly. More than that, the vast majority are highly-competent, dedicated professionals who work hard at a difficult and stressful job.

This doesn’t mean that the system is perfect, or anything like it. It often fails and often causes genuine injustice.

The tribunal has to apply the the law and procedure it is given. The law is imperfect — sometimes simply unfair — so applying it does lead to injustice.

And judges aren’t perfect. They are flawed people like the rest of us. Which means they can lose their temper when they shouldn’t; miss the point or otherwise fall short of the ideal. When this happens, it can lead to unfair results.

And – like everyone else on the planet – judges have their own assumptions and inherent preferences. Some do have an instinctive preference for the authority figure in the case. (Lots of people do; read about the Milgram experiment, and wonder if you’d have passed the test.) Others have an anti-authoritarian streak. Some get reputations; employment lawyers often describe judges as ‘pro-claimant’ or ‘pro-respondent.’ Broadly speaking, those reputations are deserved. But this doesn’t mean that the judges aren’t doing their best to decide each case fairly, according to their lights; it’s just that their lights can vary. When we say that a judge is ‘pro-claimant’ we don’t mean that they’re bound to find in favour of the employee whatever the circumstances. We mean they’re a bit more sympathetic, a bit more likely to come down on that side rather than the other. Most cases will end with the same result, regardless of the judge.

Beyond the inevitable individual kinks of the judiciary, any legal system simply has its limits. There is no perfect system that will always get the right result.

In every case, tribunals hear evidence, consider submissions and try to reach the right decision. This isn’t easy. When they start hearing a case, tribunals know nothing about the parties and have no knowledge of the relevant events. All they know is what they’re told in the tribunal room. And tribunals have no magic powers to detect honesty. Cross-examination can illuminate the truth, but it can also obscure it. All lawyers have had cases where a witness they believed to be basically honest fell apart and was made to look thoroughly shifty under cross-examination, because they got confused or brow-beaten.

This problem is made worse by unfairnesses and imbalances within society. In an ideal world, everyone who came before the tribunal would be competently represented and have much the same resources, not only in terms of money, but also intelligence, education, language and confidence. In the real world, some parties can afford lawyers, and some can’t; some parties are clever, articulate, able to present their case, and some aren’t; some have the confidence to tell the truth, warts and all – and thus gain the tribunal’s respect; some feel so powerless and backed into a corner that telling the tribunal what they think it wants to hear seems like the only option. Tribunals are not unaware of these issues; they do their best to see past them. But all the same, all too often the parties are not on an equal footing. In the context of employment this normally means the employee is disadvantaged.

In these circumstances, tribunals can’t always get the answer right. We think they’re right significantly more often they’re wrong (at least in the sense of reaching the conclusion the law requires). But this is of limited consolation if you’re in the 20% or so of cases where they simply get the wrong result.

Any justice system is imperfect and the employment tribunal is no exception. But being less than perfect isn’t the same as being corrupt.

Finally, it’s worth saying that, despite its imperfections, the tribunal also does a lot of good. Claimants do win their cases and receive their compensation. More than that, the existence of the tribunal and its ability to hold employers to account does have a wider impact on employment relationships. Many employers act a little better (or at least a little more lawfully) because of the implicit pressure of their employee’s ability to enforce their legal rights.

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Fees and costs in the EAT: Strategy / Tactics

Fees in the EAT are substantial. £400 to lodge an appeal, £1,200 for a hearing; totalling £1,600.

If you’re considering bringing an appeal, this may be disheartening. But the tactical considerations are relatively simple. Can you afford the fee? Are you entitled to remission? How likely are you to win? And how confident can you be of recovering your fee in costs if you do succeed? In the end, is the potential gain worth the risks?

If it’s the other side appealing, however, you are in a difficult position. If you lose the appeal, the other side is likely to apply for costs to recover their fee — just as you would hope to do in the tribunal. A successful appeal might leave you having paid a fee in respect of the ET you cannot now recover, an additional £1,600 to pay to the respondent in relation to their EAT fees and no award. At which point the whole exercise has cost you £2,800 (it could even be worse, some cases do involve multiple appeals).

No fee remission for a costs order

Fee remission only applies to fees that you pay; not costs in relation to fees someone else pays.

The EAT can consider a party’s financial means when deciding the amount of any costs award, rule 34B(2). If you do face this type of costs application, but have limited means, it will be well worth arguing that the EAT should reduce (even to £0) the amount of costs awarded on this basis.

However, we won’t know how inclined the EAT is to make such reductions until there are a few cases. It’s possible that they’ll be very common — with the EAT taking the view that anyone entitled to a remission shouldn’t have to pay a fee via costs either. Or they may be rare — with the EAT thinking that appellants are entitled to recover their fee.

Timing your appeal to minimise fees / costs

The way that the fee regime and remission works creates some odd incentives.

If you are entitled to a fee remission and you appeal, you will not pay a fee. But neither will the other side if they cross-appeal, since that doesn’t require a fee. Even if you lose both appeal and cross-appeal, you don’t run the risk of costs.

On the other hand, if they appeal first, and you cross-appeal, the other side almost certainly paid a fee and you are at risk of costs if they succeed.

This means that if you’re intending to appeal and entitled to remission it’s worth getting in quickly and letting the other side know that you’ve done so. It may even be worth talking to them and agreeing that you will put your appeal in first, so neither of you has to pay a fee.

There are, of course, reasons to be cautious on both sides. You don’t want to encourage a hostile appeal. If they wait for your appeal, but it’s rejected by the EAT on the sift, they will have lost their chance. Nonetheless, in some cases, cooperation will benefit both parties.

Different considerations apply if you’re not entitled to fee remission. Then you may want to wait for the respondent’s appeal yourself, in order to dodge the fee (bearing in mind that you might later face a costs application). But remember, if their appeal is rejected, you will miss your chance to cross-appeal and almost certainly be out of time to bring your own appeal.

Consider settling to avoid the fee

The possibility of a costs award means that, if the other side does appeal, you should make a cold, hard assessment of their chances. If you think they’re likely to win, it’s worth considering settling the appeal.

This will not only keep the costs down by avoiding the hearing fee in the EAT, but you may also be able to agree that they’ll bear their own costs entirely. Obviously, settlement isn’t always the right decision — much will depend on the specifics of your case and your circumstances. But probability of a costs award means thinking ‘Well, the ET decision is a bit dodgy, but why not see whether we get lucky in the EAT?’ is probably unwise.

There are two kinds of settlement you might want to consider. First, if you have been awarded something by the tribunal, is to settle on the basis of a reduction of the award and an end to the litigation. For example, say you’ve been awarded £15,000, but, having seen the other side’s appeal, think you were very lucky and, after an appeal and a remitted hearing, you’ll do well to be left with £5,000. If you can settle the EAT appeal for an agreement to be paid £10,000, you’ve come out ahead.

Second, is to settle on the basis that the case will be remitted to the tribunal. This will generally be appropriate where you agree that the tribunal has simply blundered and either the case needs to start again or some part of it needs to be decided afresh. The EAT will have to agree to allow the appeal by consent and they are likely to be reluctant to order a remission, even by consent, unless they can be persuaded that the tribunal has gone wrong.

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Fees and costs in the EAT: Portnykh v Nomura International

The EAT in Portnykh v Nomura International has clarified a number of things about applications for costs in respect of fees in the EAT (and by analogy in the ET).

HHJ Hand QC confirms that the general approach should be that the party that has broadly lost an appeal should be responsible for the fee. So, if they are the respondent, it will normally be appropriate for the EAT to order costs against them in the value of the fee.

He rejected two arguments against this. First concluding that the fact that the appeal was about the case management of the tribunal, rather than a substantive decision, was irrelevant to the issue of fees.

Second, he found that the claimant had acted unreasonably in the conduct of the appeal. But that this should not prevent her obtaining a costs order, because it had not made any significant difference to the conduct of appeal. This leaves open the possibility of a parties in other cases trying to avoid paying fee costs on the basis that unreasonable conduct by the other side did make a substantive difference to the conduct of the case.

The EAT also faced the problem of what to do where the costs have been paid, but there is an outstanding application for fee remission. This was solved by delaying the payment of costs until after the decision on remission was made. If the remission was granted there would be no fee paid and no costs.

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Recovering your fee: a guide to fee-based cost applications

If you’ve had to pay a employment tribunal fee to bring your employment tribunal claim, you’ll want to recover it at the end of proceedings if you can.

The mechanism for doing so is a costs application under rule 76(4) of the tribunal rules:

76(4) A Tribunal may make a costs order of the kind described in rule 75(1)(b) where a party has paid a Tribunal fee in respect of a claim, employer’s contract claim or application and that claim, counterclaim or application is decided in whole, or in part, in favour of that party.

So if you win, the tribunal can make an award of costs against the respondent, for the amount you paid in fees. For example, if you paid the full claim fee and hearing fee in a type B claim such as unfair dismissal the tribunal can award costs under rule 76(4) of up to £1,200. Any costs award will be added to any award of compensation. If the tribunal awards you £4,900 for your unfair dismissal, plus the full value of the fee, the respondent will owe you £6,100.

This power is separate to the tribunal’s other powers to award costs. So considerations which apply to other costs applications, such as whether a party has behaved reasonably, don’t apply.

That fees are dealt with on the basis of costs, rather than a refund from HMCTS, is significant. It means that getting the fee back involves the same risk as recovering your award. If the respondent becomes insolvent or otherwise seeks to evade payment, you may not get your fee back either, leaving you out of pocket. Considering this risk should be part of deciding whether to bring your claim.

Making the application

Although fees were introduced from 29th July 2013, cases involving them are still working their way through the system. So tribunal practice is still developing. I suspect most judges will ask, at the end of cases where the claimant wins: ‘Is there an application for costs in respect of a fee?’

If they don’t, you will need to make an application. If judgment is given at the tribunal hearing, the moment to do so is immediately after the tribunal has delivered judgment — when you know you’ve won. If judgment is reserved, it’s probably best to make a pre-emptive application, either at the end of your oral submissions or after the tribunal announces that they’ll reserve judgment, so the tribunal can deal with everything at the same time.

It doesn’t need to be complicated. Just saying ‘Having won / if I win, I’d like to apply for costs in respect of my tribunal fees.’ is likely to be sufficient in most cases. The general approach is intended to be that you will recover the fee if you win, see paragraph 15 of R (on the Application of Unison) v The Lord Chancellor.

You should bring along evidence showing how much you paid in fees.

If you don’t make an application for costs at the hearing, you have 28 days from the date judgment was sent to the parties, see rule 77. Just write to the tribunal applying for costs in relation to your fees.

Where its not so simple

If you win, the tribunal has the power to award you the value of the fee you paid in costs. But it has discretion to award less or nothing at all.

Partial awards or no award at all are likely to be most common where the claimant has technically won, but really lost. For example, if you win your unfair dismissal claim, but your compensation has been reduced by 100%, the tribunal may well conclude that, in substance, you lost, and decline to award costs.

The best way of defeating this sort of argument is to win your case as convincingly as possible. Failing that, however, you need to be ready to argue that you have succeeded enough to justify recovering the fee.

The other likely area where claimants will lose their applications is where there conduct of the litigation has been unreasonable in some way. Tribunals have a general power to award costs against claimants because of unreasonable conduct. That power is exercised rarely. I suspect tribunals will somewhat less reluctant to knock a little off the award of costs where they think conduct has been poor. Again the best way of avoiding this is to behave reasonably in the first place.

If you lose

Rule 76(4) only applies if you win. If you lose there is no separate power for the tribunal to award costs in respect of the fee. In the vast majority of cases there will be no prospect of recovering the fee. The policy intention is that parties only recover the fee where they win.

In rare cases, however, it might be worth considering an application under rule 76(1)(a) on the basis that the respondent has conducted the litigation unreasonably. For example, if they have won on the basis of evidence that was produced after you paid the hearing fee, but which should have been produced before that point, you may be able to argue that the hearing fee was incurred because of their unreasonable behaviour and costs against them are justified.

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cal 11 2013

It’s quite common for employment lawyers to be interested about the day of the week a particular date fell on in the past. For example, it might be important that an email was sent on a Friday, inviting someone to a meeting on a Monday — rather than having been sent on a Monday, for a Wednesday meeting.

Computers have made this considerably easier. Most electronic diaries will allow you to go back in time far further than is ever likely to be necessary.

But this does often require quite a bit of clicking, especially to go back a few years. If you work on a Mac (or otherwise have access to a Unix command line) I’ve found a better, if slightly geeky way.

Just open a terminal window and type ‘cal 11 2013’. You’ll instantly get a small calendar of the 11th month in 2013, including days of the week. If you need January 2011, type ‘cal 1 2011’.

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Keep a copy of your ET1

When you submit your claim, make sure you keep a copy of your claim form. You will need it later.

If you’re going to post the form, photocopy it before you do so.

If you submit it online, make sure you download a copy (either print it out or save it somewhere safe) at the end of the process. One potential pitfall is that, if you attach a document to the form online, the copy you download won’t include the attachment. You need to save / print it separately.

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But there is an argument!

Lawyers draw a strict line between what’s arguable and what isn’t. An arguable point is one that a lawyer can properly put to a judge. An unarguable point is one that it would be professional misconduct to present. For example, a lawyer can’t say that the qualifying period for unfair dismissal is 6 months; the law is clear that it isn’t; to argue that would be a short-lived attempt to mislead the tribunal.

But that distinction is a bad guide to what points you should run. Lots of arguable points are still pretty bad. It’s perfectly arguable to say ‘Madam, it was outside the range of reasonable responses for my client to be dismissed for stealing £10,000 from her employer.’ But no sane tribunal is likely to agree with you.

So if your reply to the question ‘Why do you want to present this argument?’ is ‘Because I can — it’s arguable’ you’ve gone wrong somewhere.

Rather than assembling all the arguable points you could possibly run, focus on finding your best points: the ones that are most likely to persuade the tribunal. Stick to those, and don’t run arguable but weak points just for the sake of it.

Sometimes this will still mean running weak arguments. If your case is weak, but your client is determined to roll the dice, a weak argument may be the best you have. Or, if the potential upside is sufficient, it may be worth taking a low-percentage bet. For example, since discrimination awards are uncapped it might be worth arguing a weak discrimination claim, in addition to a strong unfair dismissal claim, in the hope of obtaining much higher compensation. But, if your likely award is well below the unfair dismissal cap, the calculation changes, and it will almost certainly be better to concentrate on your best claim.

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Timeo Danaos et dona ferentes

Don’t use Latin in the employment tribunal.

Legal Latin combines most of the problems with legal writing in one convenient example. It’s almost always superfluous verbiage intended to make the writer look clever. The first problem with this is that it doesn’t work (just trust me on this). The second is that it detracts from the real purpose of legal writing, which is to write as clearly and simply as possible, in order to persuade the tribunal.

There’s also the sad fact that most people trying to use legal latin aren’t latin scholars and therefore get it wrong. Obviously, this destroys any hope that you’ll appear clever. And it also means that you’ve made your writing extremely unclear. If you’re in front of the wrong judge, you also open yourself to judicial humour.

Even if you are a Latin scholar and can parse Cicero with the best of them, Latin is still a mistake. Not least because, there’s an extremely good chance that your readers won’t share your ability. Unless you’re absolutely certain the judge and any lay members are all fellow scholars who will enjoy reliving the Roman Senate, you’re just likely to confuse or annoy them. This is bad advocacy. Trying to score points off your opponent if they don’t know Latin is also bad advocacy. You’ll just look like the bully you are.

Like most rules, this one does have exceptions. A few Latin phrases have become so commonly used that they’re now just bits of legal jargon . In the right circumstances, phrases like ‘bona fide’ or ‘de minimis’ are acceptable. But if in doubt, stick to English (and George Orwell’s advice to stick to English of Anglo-Saxon origin is normally wise).

Finally, it occurs to me that this might be read as a dig by a lawyer at litigants in person. Some litigants in person do misuse Latin. But the real problem tends to be with novice lawyers who are over-acting the part.

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Employment Tribunal Claims, 4th Edition

The 4th edition of Employment Tribunal Claims: Tactics and Precedents, the book which etclaims.co.uk supports is now available.

The new edition includes updated material on:

  • The new Employment Tribunals Rules of Procedure 2013
  • Tribunal fees and fee remission, including expanded advice on deciding whether to bring a claim
  • Advocacy in the tribunal
  • Guidance on the Early Conciliation Process (coming into force in 2014)

More generally, the book is more comprehensive than than the website can be. What we’ve tried to write is a guide that will make it possible for users to get a reasonable understanding of the employment tribunal system and how to run a case even if they have no existing knowledge either of litigation in general, or of employment tribunal procedure in particular.

The 4th edition is available directly from Legal Action Group, from amazon (including the kindle version) or from all good legal bookshops.

Work on the new edition partly explains why the site has been quiet recently. We hope we’ll be posting more frequently in 2014.

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Please consider sending cases to FRU

One of the counterintuitive impacts of the introduction of employment tribunal fees and reductions in funding to the advice sector is that FRU has ended up with quite a bit of spare volunteer capacity.

Fewer cases are being brought in the tribunal and there are fewer referral agencies (plus those that still exist have reduced resources). This means that fewer cases are reaching FRU. But our volunteer numbers are holding steady. So at the moment I have more volunteers than cases.

All of this means that, if a relatively simple employment case (basically anything listed for 2 days or less that isn’t a discrimination case) arrives with a decent amount of time before the hearing (ideally two weeks or more), there’s a very good chance I can find a volunteer to take it on. We’re extremely eager to get unfair dismissal, wrongful dismissal, wages or holiday pay claims in or around London.

So if you’re an existing referral agency please consider sending cases to us. The chances of us being able to help are currently very good. If you’re not a referral agency, but advise people about employment tribunals in or around London, please consider joining us. Details are available at: http://www.thefru.org.uk/referral-agencies

If you’re an individual with a case, I’m afraid FRU can’t take cases directly from members of the public. But you can find information about our referral agencies — who may be able to send your case to us — at: http://www.thefru.org.uk/get-advice/list-of-agancies

It’s important to emphasise the FRU can never guarantee to help. But I’m going to have about 20 eager volunteers arriving next week. And this sort of volunteer throughput looks to continue into 2014.