06 Sep What factors should an employee consider before submitting a tribunal claim? By Ryan Clement

10 October 2018 marks my 22-year anniversary at the Bar, during which time I have seen many changes in employment legislation, ground-breaking judgments and influential reports; all too many to mention here. For example, the Employment Rights Act 1996; National Minimum Wage Act 1998; Public Interest Disclosure Act 1998, pertaining to ‘whistleblowing’;Working Time Regulations 1998; the MacPherson Report (The Stephen Lawrence Inquiry) of 1999, leading to amendments to race relations laws and opening the public debate on and defining ‘institutional racism’ (6.6); Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000; Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002; Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE); and the amalgamation, and more, of the discrimination laws to form the Equality Act 2010 to name a few.

During that time many lawyers would have argued ferociously (successfully and unsuccessfully) for their clients in tribunals and courts around the country. You fight your clients’ cases to win for them, but your arguments, although not accepted by the Learned Judges, may still be used if only to emphasise why one’s argument, respectfully, has not been accepted or is rejected. And, one learns from those more Learned than one’s self. As an example, in May and July of this year my ears were ringing, only to discover recently that arguments that I had used in the second highest court in the land 14 years ago in 2004 was being cited, in part, in the recent Court of Appeal case of Ramesh Patel v Folkstone Nursing Home [2018] EWCA Civ 1689, paragraphs 36 and 42 (27)

Whilst commuting on the trains to and from tribunals/courts one asks, what factors should an employee consider before submitting a tribunal claim? I could simply say they vary and rest it there. But that would simply be stating the obvious and little else. Firstly, is not to jump to any rash conclusions before you submit your claim. You would be amazed the number of non-sequiturs that land on my desk. Which leads me to the next point, the worst (if I am representing the employee, of course!) is when an employee has a case but failed to plead it. In other words, they may have pled direct discrimination because of a disability when in fact the evidence points squarely towards the real case being instead one of discrimination arising from disability or the employer’s failure to make reasonable adjustments. So, secondly, think about the evidence and put your case properly.

Thirdly, contrary to what one might be led to believe, do not go on unreasonable fishing expeditions; it would invariably result in a waste of time and resources, not to mention the emotional capital invested. You either know why you believe you have a case or not. It is not enough to say I have a ‘gut feeling!’

Fourthly, know your case. Take, for example, a ‘Whistleblowing’ case. There is no point attempting to argue that you have whistle-blown on an issue, which is clearly a private matter of no public interest beyond staff room gossip. In order for a whistleblowing case to get off the ground, it must be, amongst other things, in the public interest.

Fifthly, weigh up alternative views. For example, if there has been no issues with a woman’s performance before she happily announces to her employer that she is pregnant and then subsequently she is informed by her employer of its historic long-held concerns over her performance and capability I would raise both eyebrows over the authenticity of those alleged ‘concerns.’ For example, let’s say an employee had been told throughout that s/he had been underperforming and had acknowledged that fact. Consequently, that employee was put on a performance improvement programme or similar and had clearly failed to meet/fulfil the criteria, which s/he accepted as fair criticism at the material time. If the employee is then dismissed on capability grounds, it would be most unwise to ignore (in)capability as being the true reason for the dismissal when determining whether the dismissal was fair or unfair and or unlawful because of one or more protected characteristic(s).

Sixthly, if you do not have access to an employment law specialist, check what needs to be proven in order to win your case. It may not guarantee you a ‘win’ but it could put you on notice of what would be a guaranteed ‘lose/lost.’ For example, if you are claiming unfair constructive dismissal where you have resigned simply because you have a better offer of a new job and you never liked your boss from 3 years ago, you will have trouble proving there was a fundamental breach of your contract of employment, and you resigned because of that breach, and you did so immediately.

Seventhly, which, in part follows on from the Sixth, if you do have access to an employment law specialist, it could be a wise investment to obtain an advice on merits. Again, it does not guarantee you a win, but you would be better informed on the way forward and potentially save a lot of money.

Eighthly, manage your expectations realistically. For example, if you are claiming unfair dismissal, there are statutory limits on parts you can recover. So, expectations above those are unrealistic. Furthermore, there are guidelines. Take injury to feelings in cases of discrimination. There are published guidelines as to the range one can expect to receive, depending on the severity and duration of the alleged discrimination. Check the guidelines.

Ninthly, this may seem odd, coming from a litigator (cure) but I also advise and train on HR matters (prevention), if you can settle matters then pursue it in good faith. Pursuing litigation can be very stressful. I am not suggesting for one moment that one compromises on what one feels is an injustice they simply cannot live with but that a settlement is invariably a compromise by both parties of some kind, which both can live with. Such could save time, stress, etc. If there is a proposed settlement of some kind, most employers would pay the reasonable costs towards the employee’s legal fees for obtaining advice on the proposed terms of settlement.

Finally, pursuing a matter solely to ‘have your day in court’ is probably not going to be the wisest investment of your time and money. You pursue a matter if you believe in it, taking into account some of the matters I have raised above, not solely because you want to tell a tribunal how mean your supervisor is or has been in all the years you have known or worked for them!

Ryan is a practising barrister, specialising in, amongst other things, Employment Law & Human Resources Management.

Please note that this post does not constitute specific HR advice or employment law advice if you require help please contact an appropriately qualified professional or email  – info@hopeplace.co.uk

Initially published 15 October 2018.

Please note that this post does not constitute specific HR or employment law advice if you require help please contact an appropriately qualified professional or email – info@hopeplace.co.uk