Friday, September 2, 2011

Don't Delay, Act Today - Leave Your Employment Tribunal Preparation to the Last Minute and it Could Cost you Dear!

With the Government’s plan of withdrawing legal aid for employment law advice, many people will be left having to traverse the employment law minefield alone, unguided and unaided.  But employing an expert to handline the initial stages of the claim, with the claimant undertaking the representation at the tribunal stage, will likely pay dividends in the end.  In essence, it is time to turn the traditional timetable of employing a representative on its head.

Whilst the original aim of the Employment Tribunal was to allow complainants to represent themselves, in recent years, the increased amount of rules and time limits has meant that those who try to represent themselves are constantly having to try to get to grips with the requirements placed on them.

Factor in the fact that most employers will appoint a representative at an early stage, and the complainant is at an extreme disadvantage.  The element many complainants fear most is the prospect of having to represent themselves during the hearing, including the cross examining of the employer’s witnesses.  In reality, if the claim has been properly prepared, the hearing is often the easiest part.  In addition, there are some excellent pro bono organisations which offer representation at the hearing.

With most complainants who represent themselves, the preparation of their case will determine the outcome.  For example, complainants may feel the need to include documents which indicate previous, expired disciplinaries, which make admissions of guilt, or which cut down the elements of the claim.  Likewise, statements may include irrelevant information which disadvantages the complainant, or crucial witnesses may not be identified and requested until it is too late for them to be called to the hearing.

In the author’s experience, complainants significantly underestimate the amount they should be claiming in settlement.  When negotiations are commenced through ACAS, the compliant may start to feel pressurised and could accept a figure which is at least 50% less than what they could have obtained with fuller negotiations.

Employing an expert to undertake the preparation of an employment tribunal case need not be overly expensive, and the golden rule is that the sooner an expert is involved, the better.  A badly worded or constructed claim form submitted to the tribunal may limit the complainant’s areas of claim in such a way that valid claims are excluded by the tribunal.  Likewise, claims submitted out of time will be rejected by the tribunal, and the general 3 month time limit for submitting claims (in some claims this can be extended to 6 months but only in very limited circumstances) does not always flow from the complainant’s perceived date of dismissal or employment termination, in some cases it may be much earlier.

In reality, if a complainant has a well drafted claim form, properly prepared statements and documents, they may likely be able to dispense with the services of the representative and go it alone at the hearing, or apply for pro bono representation. 

There are many employment law experts who specialise in preparing claims, however, before instructing an expert, the complainant should ensure that the expert has experience of advocacy in the tribunal, (best way to prepare for a case is to think how it will be argued in tribunal), and is also prepared to undertake negotiations with the employer or their representative.

There are also employment consultants who offer indemnity packages, however, in the author’s experience, this indemnity does not provide the same protection that is provided by an expert who is regulated by the Law Society or the Bar Council of England and Wales.  In other words, complainants should do their homework before employing an expert, check that they are regulated, are members of an employment law association, and that they have experience.  Word of mouth and recommendation is also often a good indicator.

A delay could cost the complainant dear, both in terms of finance and stress.  The golden rule is ‘Don’t Delay, Act Today’. 

Alison Gurden is a barrister,  offering both preparation of an employment tribunal claim and  representation at tribunal.