Whether you are an employer or an employee there are a number of things that need to be understood if success is to be achieved with the Employment Tribunal (ET).
I have had lots of experience of the Employment Tribunal system over the years. This has included writing ET1’s, ET3’s, producing case bundles, undertaking case management activity, creating out-of-court settlements and representing at hearing. I have also participated in mock ET’s, developed and delivered ET management training and lectured about the system to both undergraduates and postgraduates at two leading UK universities.
There is a body of academic work about the perceived pros and cons of the ET system. But the purpose of this particular blog is to give a senior HR practitioners perspective of the system, warts and all. As an absolute minimum, anyone planning to engage with the ET should in my view be aware of the following:
1. ET Judges are virtually all Barristers or Solicitors | In fact, according to the 2017 judicial diversity statistics only 35 or 2% of Tribunal Judges as a whole are are from ‘other professional backgrounds’. Unlike the Magistrates Court where anyone can apply, the ET more or less exclusively appoints Barristers and Solicitors as Judges. To the best of my knowledge there is no valid reason for doing this. An intelligent man or woman with integrity and good judgment could just as easily be an ET Judge with appropriate legal counsel provided. As has happened for centuries in the Magistrates Court.
A significant number of Employment Judges (EJ’s) also come from private practice later in their working lives. They therefore bring with them potentially significant conscious and subconscious bias’ commensurate with their professional experiences prior to becoming an EJ. If they have worked extensively with employers in private practice it is therefore reasonable to suggest that such an EJ may be inclined to see things from an employer’s perspective.
In addition, my experience is that although the ethnicity and gender diversity of EJ’s is improving as a collective group they are invariably middle class and highly conservative in terms of outlook, behaviour and style. Such social programming -in concert with a legal background- inevitably means that EJ’s will be more comfortable in proceedings with those who share similar traits.
2. EJ’s are frequently out of touch | I have been staggered by how lacking in even basic social awareness some EJ’s have been. In one case where I represented the EJ (and the Lay Members (LM’s) for that matter) refused to accept that the “FW” in an email means “forward”. It was an important point in the case but one that was totally lost on the panel. An EJ in another case in which I represented had no idea what Twitter was. Even though it had already been going for seven years at that point time. There are plenty of other examples like these that I could provide here.
Anyone accessing the ET should appreciate that commonly accepted social norms may not be fully understood. It should also be borne in mind that EJ’s frequently display narcissistic tendencies and some assert self-important behaviours. For example, one EJ in proccedings where I represented continually rocked backwards and forwards on his chair whilst involuntarily thrusting himself in an offputting manner. Some male EJ’s may also be Freemasons, which creates its own potential risks to justice as recently explored in relation to the Hillsborough scandal.
3. Lay Members have no real authority or influence | Anyone attending the ET with a belief that LM’s will significantly influence proceedings or control what an EJ does is deluded. Bizarrely, unlike the Magistrates Court where none of the bench are paid, LM’s are paid £174 per day or just under £25 an hour. According to recent Ministry of Justice statistics the EJ himself or herself earn around £102,000 per annum. Not bad pay as a pre-retirement filler role after already making a very good living in private practice.
Be under no illusion about the ET, the EJ runs the whole show and it will be his or her will that prevails. To the best of my knowledge EJ’s have never been overruled by LM’s in any proceedings. In fact, during most of the cases I have been involved in -including two where I was in Tribunal for two weeks for each- the LM’s were so passive that they might as well not have been there. Some LM’s are of course superb and do the job for all the right reasons. But many are totally ineffective and seem more interested in watching the clock tick by.
4. The ET is a spoon-feeding exercise | If you think that your case is black and white because the case bundle contains overwhelming proof . . . think again. In my experience ET’s are not too concerned with proactively challenging key evidence, witnesses or issues. EJ’s generally expect to be spoon-fed the key information and LM’s are even more passive. I have actually seen LM’s close their eyes and seemingly sleep during two hearings that I have attended. They will have simply been contemplating evidence, I am sure.
The side in the proceedings that spoon-feeds most effectively will almost always be the side that wins. Further, the old adage that ‘the bigger the lie the easier it is to believe’ is very much the case in the ET. I was involved in one case where no less than ten witnesses all lied under oath and their oral evidence was accepted by the ET in favour of page after page of time-stamped written evidence in the case bundle. We have a long history in the UK of accusing the dissenter of being deluded or mad and this legal tactic is very much still alive today.
5. ET case details are now publicly available online | The public airing of dirty laundry used to take place in a public hearing that members of the public could freely attend. That was bad enough for employers and employees alike. As of February 2017 all ET decisions are now freely available via the Gov.uk website.
Clearly in an era of widespread Internet use any employer wanting to build and maintain a good reputation will be keen not to feature on this new resource. For employees, the opportunity to now have their good name sullied -even where the claim was entirely valid- is now also significant. One has to ask how this development is in any way in the interest of justice. From my perspective it looks like another mechanism to discourage use of the ET system, which will no doubt be seen by bad employers as a positive. Expect to soon see some challenges to this new system further to July’s Supreme Court ruling.
6. ET legal and other costs are often far higher than financial awards EVEN IF SUCCESSFUL | Median awards for successful ET claims in recent past have ranged from just over £7,000 for unfair dismissal up to just under £14,000 for race discrimination. Sensationalised media reports suggest that ET’s make multi-million pound awards all the time and on a whim. They don’t and they can’t. The cases with significant awards are extremely rare and when these are made they are relative to much higher levels of Claimant earnings that are irrelevant to almost all other employees. The handful of very high awards also pulls up the level of average awards so the potential awards on offer can seem even higher than they actually are.
With the above in mind -and in concert with the fact that over 75% of Claimants and even more of Respondents are represented at hearings- it is clear that the costs of bringing or defending a claim generally render it a pointless exercise. From a financial perspective at least. If one considers that a reasonable Lawyer and/or Barrister will charge upwards of £150 per hour (or £1000 upwards per day) plus VAT and potentially expenses on top it is easy to see how the cost of making and defending claims is commercially futile.
In simple terms, if a Lawyer does more than seven days work on a Claimant’s case the party in question is thereafter making a net loss based on the median award for an unfair dismissal case. This of course also assumes that ithe Claimant wins the case. For an employer the loss is total as parties cannot generally recover costs win or lose.
The purpose of this particular blog is to provide an honest assessment of the ET system, its fundamentally flawed nature and the circus of misunderstanding and misinformation that surrounds it. The objective here is also to outline how to ‘win with’ and not ‘win at’ the ET.
The real way to ‘win with’ the ET is to avoid it altogether. The ET, in my experience, is a bit like the concept of thermonuclear war as so cleverly explored in the 80’s film War Games. Like thermonuclear war, involvement with the ET is not only highly unsatisfactory for most parties involved but also a kind of employment MAD (Mutually Assured Destruction). If a company successfully defends a claim it will almost always lose out financially whilst also triggering internal problems and reputational damage. For the employee -even if he or she wins- the health impact can be significant.
Ultimately, the best way to ‘win with’ the ET is to ensure that good HR practices are observed in the first place. Some years ago I worked with an HRD who questioned my level of experience in relation to the ET. This challenge was based on the observation that I didn’t end up in proceedings as often as they and other colleagues did. I politely pointed out that the test of an effective HR professional is not how often they are involved in HR proceedings, but how often they successfully avoid them.
HR is often managed on what doesn’t happen and avoiding the multifarious flaws of the ET system is a key metric in this regard. Even where ET involvement looks probable there are still a whole raft of techniques and approaches that we at Reach Higher Human Resources™ are able to utilise to help our clients. In five successful years of debt-free trading and growth we have successfully kept all of our clients out of the ET. This includes some of the biggest multi-nationals in not just the UK but the world.
If a business calls itself an HR outsourcing and consultancy specialist but simultaneously boasts about the management of ET activity I would firmly say buyer beware. Litigation is a specialism for lawyers and we work with some of the best in the UK in this regard. There will always be a place for good lawyers managing -and using their expertise in relation to- litigation. But by developing and adopting effective HR practices via our own specialist expertise clients see significant reductions and outright avoidance of ET activity in addition to other improved negative employee-related metrics such as absence and labour turnover. It’s time to reach higher.