Business aid: Employment Tribunals
Ian Wilson of local solicitors Dean Wilson LLP answers questions on employment law. This week: Employment Tribunals
Q. I have read that Claimants in Employment Tribunals are going to have to pay fees now and presumably this will reduce the number of frivolous claims. However, I am still concerned that claims will be taken to the Tribunal even if they are still speculative and that we, as the employer, have to spend money fighting the case with no prospects of recovering that money. Will that still be the case?
A. You are right to be concerned because for the last year, in respect of which there are figures. i.e. up to March 2012, the average award in a Tribunal was £1,739 but of course you as the employer could have spent £5,000-£10,000 in legal fees in fighting the case.
Q. It has always been assumed that if a Claimant is acting without a solicitor and loses the case they are not likely to be ordered to pay any costs. Is the fact they are acting without a lawyer something a Tribunal will take into account in deciding whether they should have to pay the employer’s legal costs?
A. More recent cases have shown that Tribunals are prepared to order Claimants acting in person to pay some of the employer’s costs and indeed if a Claimant is acting without legal advice it is more probable that they will bring a claim that has no realistic prospects of success and therefore might make them more vulnerable to an order for costs. However the reality is that these people often have no money with which to pay the employer’s costs and therefore to obtain an order for costs against them is somewhat of a Phyrric victory. For example, a recent Tribunal ordered a Claimant acting in person to pay £60,000 by way of costs to the employer even though everybody knew the Claimant had no money.
Q. Is it going to be easier now to have a weak claim struck out at an early stage to stop the costs escalating?
A. The answer is it should be because Tribunals are now going to look at every claim on paper to see whether it has any reasonable prospects of success and if they think that it has not they will order a preliminary hearing. Up until now Tribunal offices have not assessed the merits of claims but simply processed them and so I think this is a good move from an employer’s point of view.
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Ian Wilson is senior partner of 13 partner Brighton solicitors Dean Wilson LLP and specialises in employment law. He was a part-time chairman of the Employment Tribunals for nine years. He is also a board member of The Martlet’s Hospice.
