controversy over make-up of tribunal panel
SELF-REPRESENTING at a tribunal has been described by claimants The Detail has spoken to as ‘daunting’, ‘intimidating’, ‘unfair’ and ‘difficult’.
The process mostly takes place through correspondence between the two sides and also in talks behind closed doors – where the unrepresented client is at his or her most vulnerable.
Before a case goes into a tribunal a series of case management reviews take place in which the tribunal chair and representatives of the two sides show how the case is progressing. This is also where the key issues of the case are identified and the first signals come as to the capability of the employee to argue their case – often coming up against highly-trained solicitors and barristers.
The formal setting and the loneliness of self-representing can be daunting enough, but when sitting opposite your boss or former boss and their barrister, the experience can be highly intimidating, according to people who have been through the process.
Lawyers and the chair speak in legalistic terms, which makes the process even more confusing for the claimant.
The claimant is reminded that it is their case; that they are responsible for doing everything involved – including ensuring their paperwork is correct – a time-consuming process requiring attention to detail for someone with no legal background.
Claimants can also be informed in this setting that if they lose the case, they may end up paying the legal fees of the other side.
It’s a situation more akin to a pressure cooker, rather than the informal method of resolution that a tribunal was intended to be.
Rosemary Connolly, a solicitor who has her own practise in Warrenpoint, says the Tribunal process requires hard work and preparation.
“Employment law cases at tribunals do depend on careful, fairly meticulous preparation and … without soundly too aloof as a legal representative, what you also find with people who are self-representing is there is a tendency to simply stick the claim in and then wait until you get a hearing date, which can mean and often does mean that hearings which involve self-representing litigants on either side of the fence, whether they are claimants or respondents, take much longer."
Rosemary Connolly/Employment solictor
The steps involved to bring a claim to tribunal:
1) Fill in ET1 (NI) claim form within the time limit, which will be three months or six months beginning with the day on which the act was done, depending on your claim.
Says Ms Connolly: “First of all you have to complete your own application form for the tribunal; in order to do that you are going to have to be aware that there are quite strict time limits that apply, for example for an unfair dismissal claim, it must be brought within three months of the date you’ve been dismissed, quite a tight timescale really, but with the tribunals there is very little leeway to extend that time limit.
“In terms of discrimination claims there are slight variations but it’s a good rule of thumb, the three month rule nearly across all of them, but it depends on the type of claim.
“The claim form is fairly straight forward questions, your name, name of the employer that you are suing and so forth and it will ask you for details of your claim.
“However, where it asks you for details of your claim if it’s something more complex like, ‘I believe I have been discriminated against’, it’s hard to know whether a self-representing litigant would know whether they believed the discrimination was direct or indirect and these are questions that will subsequently become important.
“Then the claim will be lodged and within 28 days the respondent will have to present their response to the claim and if they are legally represented they will invariably at the same time issue a ‘notice for additional information’, which means enquiries that they will ask of the claimant about their claim, seeking further details, explanations and clarifications about their claim and they will issue a notice for discovery.
“In your straightforward unfair dismissal claim, it would involve issuing a notice for discovery and then generally waiting for a hearing date. In discrimination law claims, because they are under the employment equality legislation there’s a fair bit more involved in that. You’ll put in your claim and they’ll put in their response and invariably there will be what’s called a case management discussion.”
2) Case management discussions
• To clarify the issues (which you will have to draw up yourself)
• Decide what orders should be made about matters such as documents and witness statements
• Decide the time and length of full hearing
“At a Case Management discussion the tribunal will want to know what are the core legal issues, for example if it is discrimination, is it direct or indirect or victimisation,” says Rosemary Connolly.
“They will also want to know the core factual issues relied upon by the claimant or by the respondent who is saying ‘no it didn’t happen that way’ and they will then want to know how many witnesses each side is going to bring so they can get an idea of timing.
“They will want to know if there are any outstanding matters between the parties, for example, has someone made a request for discovery that hasn’t been complied with and so on, they will want a time estimate for the hearing and they will move towards trying to list that as discrimination cases are seen as invariably more complex than anything else.
“For a self-representing litigant, the idea is that when you are advancing your case, you draw to the tribunal’s attention any relevant case law authorities. And that could be quite difficult for any self-representing litigant.
“If something is left out by someone who is self-representing or if they’ve not put forward some aspect of their case, simply because they didn’t realise it was important to do that, then it’s missed out. There’s no guidance that will tell you need to make sure you cover every single crucial factual element, otherwise if you haven’t raised it, you won’t be able to.”
3) Pre-hearing review
• Tribunal decides whether the claim or response should be struck out
• Decide questions of entitlement to bring or defend a claim
• Decide if a party’s case has no reasonable prospect of success and if so, decide how much of a deposit is to be paid before that party can continue to take part in proceedings
“A pre-hearing review will only occur upon the application of one of the parties, typically a respondent may ask for a pre-hearing review if they feel that the claim has no prospect of success. It may be because they are saying the claim is lodged out of time and that the tribunal wouldn’t use it or that the claim form really discloses no cause for action, it might be that somebody feels aggrieved about something but it doesn’t actually infringe any piece of legislation.
“A number of respondents use it tactically where if they feel that a claim is very weak, they do it to say, ‘let’s get it knocked out at this stage before we have to go the length’. A pre-hearing review is not inevitable, it can only occur if either the tribunal, having read the claim thinks it has no cause or the respondent makes an application that there should be one.”
4) The Hearing
• Held in public and decides whether the claim succeeds or fails and, if it succeeds, what remedy is appropriate.
• The hearing will normally be conducted by a full tribunal which includes a chairman and two lay members.
“At the Hearing where you’ve got a lawyer on one side and the other side is not represented, generally speaking, although it’s the responsibility of both parties and the major responsibility of the claimant to prepare the bundle for the hearing, if we were acting for the employer, we would prepare the bundle because it’s usually beyond the resources of the claimant and quite frankly it’s usually not done in a professional manner and then the tribunal will be annoyed that it hasn’t been properly prepared.
“Now that being said, some colleagues of mine would say why should they do that? Why should they advantage the other side? There is no reason to do that, but that’s generally the convention, usually when the other side are unrepresented they will share the admin things and get it through to hearing.
“I think the difficulty for self-representing claimants will probably arise when they are trying to sum up for the benefit of the tribunal what exactly the case is and what points they are putting forward in support of their case. A number of self-litigants also say they find it difficult when trying to cross-examine witnesses.
“The claimant is always so caught up emotion, as employment is such a big part of people’s lives. However often what they need is a totally objective view and people who self represent are missing out on someone who can deal with the facts. I just focus on the actual chronology of proceedings, who did what and when, how someone else was treated, was what happened to you definitely less favourable treatment and if so, to whom are you comparing yourself and is that person of a different religion, gender, race or ethnic origin. Whilst something may be unfair it might not be unlawful discrimination, but a person doing their own case doesn’t have the advice of someone to be objective.”
5) Review Hearing
• You can apply to the Tribunal to ask it to review its decision, orally at hearing or in writing within 14 days of the date the decision was sent to the Office of the Tribunals.
Personal qualities required to self-represent:
• Confident
• Outspoken
• Organised
• Attention to detail
• Spare time to commit
• Determined
• Resilient