With the majority of areas of employment law now ‘out of scope’ for legal aid, meaning employees cannot access free advice and representation for most types of employment case, many people fall into the ‘justice gap’. As a result, a growing number of claimants have to navigate the Employment Tribunals alone as ‘Litigants in Person’. Without representation, claims are more likely to fail, and the experience can be extremely difficult and stressful.
This month, we spoke to John*, a former employee in the transport sector who took his employer to the Tribunal for what he felt was unfair dismissal. He discusses his experience as a Litigant in Person, and how he feels the system needs to change to ensure justice is delivered for employees who are already at a financial disadvantage against their employer.
John’s experience is his own, and in no way intended to discourage others from starting a claim – but his perspective shines a light on ways our systems for enforcing workers’ rights could deliver better access to justice.
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In November 2019, John was dismissed from work. John felt he was being dismissed for raising health and safety breaches – in other words, whistleblowing. Believing he should be entitled to some compensation, he approached Acas and went through their conciliation process, then started an Employment Tribunal claim. The case has dominated his life since.
John wasn’t in a trade union, so he relied on high-street legal advisors to give him advice before he started his case. He told me: “I didn’t have the money to get a solicitor. I went to get advice with the intention of taking it to court, but I knew I couldn’t afford to get a lawyer to represent me when I was quoted at least £15,000 for fees.”
“There was no chance of getting any advice during Covid. Where do you turn to for free advice? There is nowhere really. You could only access sketchy half-hour sessions for free with a private solicitor.”
GMLC offers one-off advice for employees with employment law queries in Greater Manchester. Nevertheless, we recognise that one-off advice is often not enough – there are simply too many people who need advice and too little free provision to meet that demand. Ideally, employment solicitors could offer free representation as well as one-off advice, but the inability to get legal aid has driven many free-to-access legal advisors out of the sector.
John went to Acas to begin conciliation – an effort to resolve the issue with his employer before taking it to the Tribunal. The conciliation process was unsuccessful, so John began his claim for compensation without representation. “I got SARs [Subject Access Requests] for myself, but that was an ordeal in itself. The process is stacked against litigants in person.” SARs are records of all the information held by an organisation about yourself. Organisations are meant to comply with your request within 30 days, but often they can delay and leave you to take it to the Information Commissioner’s Office, which also slows down proceedings.
John, even with help from his wife Charlotte*, struggled to get together the documents that he needed for the case, and wasn’t sure what was expected of him. “Someone from the Employment Tribunal told me ‘the more you give them earlier, the better’, so I provided a list of the documentation that I wanted for disclosure with my ET1 [the first form submitted in an Employment Tribunal claim]. Then the judge told me in the preliminary hearing that it was ‘too early’. Solicitors know the process. Litigants in person don’t.”
Though his case took quite a long time, with a year elapsing before his hearing was scheduled, John found it hard to comply with the tight deadlines. “You think you want to get it done to get through the process, but there is massive time pressure on submitting the forms and statements, many of which the judges didn’t even have at the three preliminary/case management hearings that I had.”
When John did get to the first hearing, it was an intimidating experience. “At the first preliminary hearing, my former Managing Director was present, alongside a solicitor who was a partner at his firm, and the external HR Director who had conducted the appeal hearing, as well as the judge, all sitting in the virtual court. I’ve been a manager for years, but to be in front of a judge when it’s about the law is a pretty daunting thing. To be expected to get everything spot on is a big ask in itself. You’re subjected to this process that’s totally alien. It was horrendous.”
Judges are encouraged to make allowances for Litigants in Person, including by showing “patience and an even‐handed approach” and by being “aware of the feelings and difficulties experienced by litigants in person”. John didn’t feel that this made up for his lack of representation, however.
“When it came to the Tribunal hearings, I was up against a top quality Q.C. barrister. It’s such a consuming thing – every correspondence as a layperson might take you an hour to read and understand, and then you have to work out how to respond to it. You don’t know what you’re allowed to do, and that means you feel nervous to do anything. I didn’t feel like I was given the time of day.”
Nevertheless, John was able to proceed, raising his belief that he had been dismissed for whistleblowing. Throughout, every letter, every meeting and every hearing was clocking up costs for his employer. This makes the stakes high for unrepresented litigants. Many law firms have insurance or shoulder some of the costs risk themselves, whereas unrepresented people have to worry about those costs. John said: “The costs cloud just hangs over you immediately. It was always there in the back of my mind – the stark reality of what could happen.”
It’s important to point out that it is unusual for employers to be awarded costs against their employees. In 2019-2020, only 130 claimants had costs awarded against them – less than 0.05% of all claims. However, judges can order that Claimants pay their employer’s costs when they feel a claim has been vexatious or unreasonable. For example, in Vaughan v Lewisham London Borough Council and others (2013), an employer was awarded £87,000 because their employee had been “fundamentally unreasonable” in pursuing her claim, and her appeal was dismissed.
When John finally got to his hearing in April 2021, having had to delay again from November 2020 due to catching Covid, he was unhappy with how it was conducted. He felt that there was information in the Judgement which was not correct, and moved on to appeal the decision. Charlotte pointed out: “It’s very difficult to appeal decisions accurately or complain about how the Tribunal hearing was conducted, because the hearings are not recorded, and there is no access to a court transcription. There is no access to judges’ notes as they remain private, and it is a criminal offence to record Tribunal hearings without permission.”
Eventually, John lost his case – and then had to come back for a costs hearing so his employer could argue that he should pay for their legal representation, including their expensive Q.C. barrister. John claims the Q.C. charged thousands of pounds per day for the Tribunal hearing and a further £8,000 for one day at a costs hearing. He only had two weeks to pull together his defence to a potential life-changing costs order, and the costs claimed by the Respondent against John were in excess of £140,000. The Judge awarded costs against him capped at £10,000 or a sum to be agreed. John has also appealed against the costs judgment.
Charlotte told me: “The Tribunal just felt like a really horrible game.”
John added: “Going in as a litigant in person should come with a public health warning. You need to be aware of what it can do to your life, your health, your family.”
I asked John and Charlotte what they would change about the Employment Tribunal system to make it feel fairer in cases like theirs.
John immediately told me: “You need people to have free representation. A litigant in person should not be facing a top barrister. I’d have preferred if I was going up against someone from my former employer’s company, another layperson – at least that would have made it more of a level playing field. As it is, the system is completely stacked against you.”
Charlotte was equally incensed by the process, and by the inequality her husband had faced in his ability to get representation. “Especially in whistleblowing and discrimination cases, how can they say there’s equality of arms?”
Charlotte and John both suggested that there should be specialist judges for whistleblowing who understand the issues. Whistleblowing can be very sensitive and complex, even when trying to agree on the facts of the case. There is always the risk that sensitive issues like bullying, health and safety or other breaches may become no clearer in a court room, and yet employers have far greater resources to fight their corner in the court system.
Recently, John was one of hundreds who signed a letter arguing that Tribunal hearings should be transcribed or recorded so that it can be raised when judgements are factually incorrect, and so that everyone can work from the same information. Wealthier parties can afford to hire professional note-takers, or take another employee with them to make detailed notes, whereas litigants in person are reliant on friends and family members to keep up with proceedings. The letter, which was signed by senior NHS consultants, doctors, nurses, journalists, whistleblowers and a wide range of members of the public, stated:
Many whistleblowers say they feel at a disadvantage particularly if they wish to appeal a decision and they haven’t got a transcript to raise points that are not mentioned in the judgement. And most whistleblowing hearings are far from informal occasions – employers use forensic barristers whose questioning of whistleblowers would not be out of place at an Old Bailey [criminal] trial.
The campaign for greater transparency already seems to be moving forward, as the Presidents of the Employment Tribunals replied recently saying they “encourage” the use of recording equipment in Tribunal hearings where it is available.
It is now two and a half years since John began his case, and he is further from a satisfying outcome than he was before he started. However, he hasn’t given up on his side of the story, and wishes it could be fairer for future litigants when facing the “behemoth” of employers, lawyers and the judiciary.
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*Participants’ names have been changed to preserve anonymity.
Greater Manchester Law Centre has a free employment service that can give advice to residents of Greater Manchester. If you are outside that area, you may wish to search for your local Law Centre or free advice provider. If you are a Litigant in Person, Central England Law Centres have produced this useful guide to walk you through the process: https://www.centralenglandlc.org.uk/how-do-i-represent-myself-at-an-employment-tribunal
There is also a guide available from the Judiciary here: https://www.judiciary.uk/publications/handbook-litigants-person-civil-221013/
The organisation Protect offer free, confidential whistleblowing advice.
Photo credit: Koen Jacobs, Flickr, 2019.
