Legal advice: Tribunals

IT IS an unspoken law of all court hearings that your case never looks better than it does the minute after you've had your say and before the other side have theirs. With tribunals it is often suggested that there is a further such law - whichever side you are on, you will always feel that the tribunal is more sympathetic to the other.

It may simply be me but it always seems that if I need a time extension for the exchange of documents it is refused, yet if the unrepresented claimant produces his documents from a carrier bag coated in jam half way through the hearing he is given a half-day adjournment, a lift to the copying shop and his bus fare back.

Indeed, not only is that a true example, but I was once at a hearing where a claimant had his friend represent him so badly that he faked a heart attack to secure an adjournment successfully from a rather bewildered panel (I promise it's true).

This view is, of course, rather harsh, and before I am blacklisted by every tribunal chairman in Britain, I should add that it is a matter of perception rather than reality.

Litigation is such a curious beast, and employment law so personal, that it is hard not to become so partisan by the date of the hearing that you believe your own client is part of the second coming.

But how do tribunals balance out our competing requests and demands, particularly where there is an imbalance in representation, and how far are they really allowed to do so?

Getting the lawyers in…

It is perhaps considered rather quaint now to think that when the 'industrial tribunals' in the 1970s were conceived they were intended to create an informal forum for the working man, devoid of complex rules of procedure.

I dare say that tribunals began in just that way but within very short order many claimants sought the benefits of legal representation. The exclusion of lawyers from such hearings was never going to happen and gradually the rules have increased.

At the same time, with discrimination claims for example on the increase, tribunals are increasingly called upon to make awards of compensation (technically without limit), that can be considerably in excess of any claim before a County Court or High Court judge. Many argue this is unfair without there being strict 'rules of engagement', as there are in the County or High Court.

This presents the system with two competing directions to travel. On one hand there is pressure to simplify and broaden the procedures to meet the initial objective of the tribunals (leading to inevitable allegations of subjectivity) and on the other pressure for the rules to be tightened to reflect the increasing complexity of the law - on the basis that the owners of businesses are people too!

To an extent the tribunals do strive to balance these competing objectives. But the question is, is this ever truly possible?

Strict deadlines

Anyone who has had any contact with the Employment Tribunal knows that there are fairly strict deadlines for lodging claims (usually three months from the dismissal) and for lodging a Notice of Appearance in reply. Strict enough, it seems. Yet, is it fair to an unrepresented claimant who is unaware of the rules and has perhaps only looked into raising a claim as a last resort on failing to find a new job?

As a consequence, the time limit can be modified to allow the tribunal to consider a complaint if it was lodged out of time (that is, if the tribunal considers it not to have been reasonably practicable for the claimant to have lodged within time).

Consequently the tribunal must be bombarded with those claiming they lodged the form unsuccessfully by email or fax (we had one man claim he had emailed it and when asked to prove it he said he had thrown his computer away the next day).

It isn't just the laws that show some schizophrenia. The tribunal also has to work within its rules of procedure.

These begin with the 'overriding objective' that the rules should enable a chairman to deal with a case 'justly'. This is sensible enough but it then goes on to say that this requires a chairman to ensure, so far as is

possible:

(a) that the parties are on an equal footing; and at the same time (b) that they are dealing with a case in ways that are 'proportionate' to the complexity or importance of the issues.

This must be difficult to achieve fairly in any case where there is a represented respondent and an unrepresented claimant and can be contradictory if the case is also extremely complex.

That's so unfair!

In practice this can lead to complaints that the claimant is getting away with murder in the way they are litigating the case.

From not copying in the other side on their letters to the tribunal, through unreadable documents covered in jam (as mentioned earlier) to simply not turning up, there is no doubt that the latitude the tribunal is often obliged to give to claimants can seriously inconvenience a company defending the claim and increase its legal costs.

And it is with legal costs that the balance can seem so far shifted to an unrepresented party that the company is destined to settle regardless of the merits - as, simply put, it's cheaper.

There are, of course, many more examples, leaving us again with the question of whether any tribunal can really ever balance the two competing objectives at its very core. There is no doubt that its chairman and staff work hard to do so within the confines of the rules and legislation, and with many types of claim on the increase we must conclude that confidence in the system may never have been higher.

Perhaps also these difficulties are inherent in a system which allows both represented and unrepresented parties to litigate together.

Wouldn't it be nice though if Parliament, when legislating, could try for once to remember this problem - a problem which can tie the hands of a chairman and sometimes be reconciled only by the patience of the lawyers who work within the system. Remember, represented parties need love too.

Still, on one thing all lawyers agree. It does give us something else to blame whenever it doesn't go our own way and for that we can all be truly thankful!

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Darren Clayton is partner of Doyle Clayton Solicitors based in London and Reading. Doyle Clayton specialises in employment law and acts for a wide range of employers. If you require any further information go to their website in the right hand column or contact Darren Clayton on 020 7329 9090 or by emailing dclayton@doyleclayton.co.uk