The perils of taking your boss to tribunal

“ACCESS to justice is making the justice that the tribunals provide real. It’s opening the doors so that people can at least bring their case.”

These are the words of Mark McEvoy, a barrister and chair of the Northern Ireland Employment Lawyers Group. Mr McEvoy expresses his concern with access to justice in the Office of Industrial Tribunals and Fair Employment tribunals.

There are currently 4,054 live claims with the Office of Industrial Tribunals and Fair Employment and with the current system being described by a spectrum of people The Detail has spoken to as ‘complicated’, ‘unfair’ and ‘slow’, there is a call from employees, lawyers, solicitors and trade unions to increase access to justice.

With legal aid unavailable for employment tribunals, many claimants self represent. From April 2010 to March 2011 there were 35 complaints heard and determined, only 6% of these cases were found in favour of the claimant and 94% of these cases in favour of the employer.

Too complex for the unrepresented?

Rosemary Connolly, a solicitor from Warrenpoint who has worked with employment law for over 25 years says that the law has become very complex.

“The law itself is complex, it’s about as complex as it gets, I think people feel excluded from the process. I would have the concern that people are going in unrepresented; they are not getting a qualified opinion.”

Mrs Connolly recognises that the complex legal system and lack of legal aid available for claimants makes the process very difficult if you are unrepresented.

“I expect that the burden is disproportionately on the individuals who are not as well resourced as corporations or public sector bodies and don’t have an endless resource to defend claims and have to consider if it is a diminishing returns scenario.”

“It’s unfair if people who are low paid and therefore have lower claims are effectively not benefitting from their rights and entitlements simply because there are barriers to them accessing redress, but anecdotally if a claim is worth less than £5,000 its very unlikely this individual would have access to legal representation.”

Mark McEvoy says that there are also limited forms of help from other organisations.

”There are limited forms of assistance from organisations such as the Equality Commission. If your case is about discrimination and if it fits within their legal framework then they can help you, but other than that there are few places to go for help and it would be quite difficult for you to finance and resource a case to make it worth your while, so the key issue is accessing representation.”

Mr McEvoy says how the increasing number of employees self-representing, not only affects the employees chances of success, but makes the lawyer’s job more difficult and slows the whole process down.

“We have to explain fair rudimentary matters in a fashion that the claimant can understand and while I appreciate that and I’m sure colleagues would agree, it has to be appreciated and that can be difficult for my clients. Small businesses find it hard to understand and after they have gone to the bother of paying for legal representation, they have to sit and wait through explanations being given. It’s a very hard job for a chairman and as a practitioner it’s hard to manage expectations because clients quite rightly can be disconcerted when they are confronted with this scenario.”

“Toxic” labelling and the gaps in the system

A lecturer from one of the main Universities in Northern Ireland describes the tribunal system as ‘inherently unfair and difficult’ after he lodged a claim against his employer alleging he was discriminated against on the basis of religion and gender.

The employee, who does not want to be identified as he is looking for work, self represented in his claim and believes there are huge gaps in the system as he felt he had no choice in his claim and says it was ‘very much the wrong claim’.

“To make a complaint I had to hang it on one of three categories, so I had to take a case for religious discrimination. It was all about maladministration, this woman had lied in her application and they didn’t spot it. It pained me to have to say I was taking a case of religious and sex discrimination.

“The system is stacked against the man or woman who is self-representing and then the Universities barrister won’t allow the airing of dirty washing.”

Rosemary Connolly says some issues aren’t governed within the current system, which may push people into making a claim under the wrong label and that people are concerned bringing a claim will make them look litigious to future employers.

“It’s true to say that a lot of unfair treatment isn’t governed within our law, for example people regularly come to me and I say I have a situation at work which is intolerable, people are being unkind to me and so forth, and certainly every individual can express an internal grievance and do forth, however in terms of legal remedy they are relatively restricted. There’s nothing about unfair behaviour at work legislation.

“People also have concerns that perhaps they will be perceived as litigious, perhaps a new employer may say nothing, but learn of the tribunal claim and be apprehensive about someone who has brought litigation, so there are lots of concerns when people come to litigating.”

The man who claimed against the University said the counter-attack he experienced was ferocious.

“With that particular employer if you stand up at all and show any sign of defence, you will get squashed. I went to win the case, but I knew there was little chance that I would. The university make sure that they never lose by employing the best barristers; the whole system is loaded against the wee man.

“This is public money, when we pay our taxes it is going into the University to pay legal fees on cases like this.”

The claimant explained how you cannot go into the tribunal process half-heartedly and that it takes a certain type of person to fight a case until the end.

“For some the process would be very intimidating and you would need support. It’s all about building up the courage to stick with the case. It’s a long process that can take up to two years and when you have to go through all the papers, it’s easy to see why many cases are withdrawn even before they reach the tribunal stage.”

No place for the Law?

Eugene McGlone, Regional Co-ordinating officer for Unite the Union and the current president of the Irish Congress of Trade Unions says the system has turned into a monster.

“It has altered radically over the years, the legislation has changed it, and the involvement of solicitors has changed it. In some sense the involvement of trade union officials has changed it because it has forced employers to become smarter about how they deal with these things, to become cleverer and deal with issues.

“We have all together, collectively managed to create a monster that is the current tribunal system.”

Mr McGlone thinks that the presence of law in the tribunal process has made it more complicated and not what it was intended to be.

“It’s impossible now to have a hearing, a simple straight forward unfair dismissal claim dealt with in less than the guts of a week and they involve barristers and as soon as you walk into the room its precedent being quoted, case law sacked up on the desks, it becomes a very formal setting. So how do trade unions deal with that?…We pass them onto solicitors by in large because of the time constraints that are placed upon us to deal with them.”

Mr McGlone believes the element of the law in tribunals should be eliminated.

“I’ve nothing against lawyers per se, but I don’t think that industrial relations are the right place for over legalisation of the relationship. There is a legal relationship between the employer and the employee, what we need is the ability to enforce that relationship on a more equal basis, rather than get to the stage where employers are making money out of tribunals.

“By the time you get to an industrial tribunal, the relationship between the employee and the employer has totally broken down to such an extent they probably won’t ever talk to each other again and that’s what happens when people start to throw stones and that’s the nature of industrial warfare and it shouldn’t be like that because it’s a dispute between two people.”

Barrister, Mark McEvoy, can understand why some people would say the law needs to be eliminated from tribunal proceedings, but does not agree with it.

“These people are saying a whole raft of very carefully prepared rights and responsibilities should be eradicated and people simply move to take their case in civil courts and let ordinary judges decide. I think that before you’d argue such a step, you’d need to be careful not to throw the baby out of the bath water. It’s not for nothing that tribunals were created because fundamentally there’s bargaining power between an employee and an employer.”

Fit for the future?

Rosemary Connolly agrees that the system needs to undergo some changes, especially in tougher times.

“People turn to the law in employment matters usually whenever something adverse in their career or employment happens. Regrettably we live in very challenging economic circumstances and it is certainly the case that a large number of the cases coming before the tribunals and into practices like ours presently involve people whose employment has been terminated, companies are rationalising, costs are being cut wherever they can be and very frequently that means cutting down on numbers.

Established in the 1970s, Industrial tribunals were set up to hear and determine claims to do with employment matters.

These include a range of claims relating to unfair dismissal, breach of contract, wages and other payments as well as discrimination on the grounds of sex, race, disability, sexual orientation, age, part time working and equal pay.

Employment tribunals deal with complaints of discrimination on the grounds of religious belief or political opinion.

Rosemary Connolly argues that if claimants had the funds for representation the system would be more equal.

“The law is very complex, it is often said that anyone can go there without legal representation and when tribunals were first instituted they were supposed to be informal venues were redress could be quickly obtained, but the reality is the law in terms of employment is extremely complex and studies on tribunal systems in general show that there is direct correlation between legal representation and your chances of success and I think that’s only to be expected.”

However Eugene McGlone thinks legal aid would complicate the system even further and that if neither side had legal representation the system would be fairer, less time consuming and less costly.

“It’s just a matter of application and lawyers do know law, but we are not dealing with law, we are dealing with industrial relations, we’re dealing with a dispute between two people, it’s not about the law and the problem that I’ve found at tribunals that I’ve done would be the constant quoting of precedent of case law.

“The normal person won’t understand what certain things mean or if they are relevant and they don’t know that they can challenge it or they don’t understand if the challenge is going to be given any credibility, so within the system there isn’t enough freedom to allow it to be what it was intended to be which was an informal method of resolving industrial disputes between a person and their employer, but it’s no longer that.”

Mark McEvoy thinks one improvement to the Tribunal system in Northern Ireland could be to establish an Appeals Tribunal, similar to what exists in England, Wales and Scotland. This would give parties the right to appeal a decision with less cost risk, less exposure and overall a more effective right of appeal.

“Employment law is really one of the few areas where there is no intermediate tier, you must go straight to the highest court in the land and it’s our view that some thought should be given to whether or not it would be appropriate to have an intermediate tier between the tribunal and the court of appeal because in taking a case to the court of appeal there is substantially more cost risk involved for the parties and more risk in terms of losing everything if the case goes against you.

“Anecdotally our impression is that it would put parties off where they may have grounds for appeal, it would discourage them from actually taking that case forward to appeal and maybe rectifying something that, as a matter of law, is wrong and as lawyers that’s a matter of concern to us.

“A right is only a right if it can be meaningfully accessed.”

More costs to come for claimants?

Michael Rubinstein, editor of the Industrial Relations Law Reports, Equality Law Reports and Co-Editor of the Equal Opportunities Review says the future is looking even tougher for would-be claimants, with changes in the system in England designed to block actions.

“The Government in GB has just announced that it’s planning to introduce fees for claimants who want to pursue a case, they are talking about introducing a fee of about £400 in order to make an employment tribunal application and then £1000 in order to actually have a hearing.

“Their reasoning is that the users should pay for the system and that’s going to act as a further disincentive to claimants to bring claims and I suspect that if it’s brought in GB, it won’t be too long before the same approach is adopted here.

“The idea is that the fee would be refunded if the claimant is successful, but as you rightly point out, very few claimants are successful so that may not actually work very well from the claimant’s point of view.”