By Darren Clayton, Doyle Clayton Solicitors, London


Terms of engagement

It is an unspoken law of all court hearings that your case never looks better than the minute before the cross-examination of your witnesses begins. With tribunals it is often suggested that there is a further such law - whichever side you are on, you will always feel 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.



This view is, of course, rather harsh, and before I am blacklisted by every tribunal chairman in the UK, 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 for most it is hard not to become sufficiently partisan by the date of the hearing that you believe your own client 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?



It is perhaps considered rather quaint now to consider that, when Mr Jenkins et al conceived of the 'industrial tribunals' in the 1970s, they 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 a short space of time many applicants (now claimants) sought the benefits of union or legal representation. The exclusion of lawyers from such hearings was never going to happen and gradually the rules of procedure and formality 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 High Court or Court of Appeal judge, and few would deny the technical complexity of an equal pay claim.



This pressure 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 or even 'regionality'), or the rules are tightened to reflect the increasing complexity of the law, to 'discourage' more speculative behaviour and provide greater 'certainty'.



To an extent, the present rules of procedure and the tribunals themselves strive to balance these competing objectives. The question is whether this is truly possible for them.



For example, 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. Clearly this is sufficiently simple to create certainty. 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 has to 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 and that it was lodged within a 'reasonable time'. Consequently, the tribunal must be bombarded with those claiming they lodged the form unsuccessfully by email or fax.



This position is further complicated by our perennial favourite, the statutory dismissal and grievance procedures. Since whatever appears to be a grievance can potentially amount to an appeal against dismissal, regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 can end up extending the time for lodging a claim if the employee has a reasonable belief that a dismissal procedure is ongoing at the time and has lodged the 'appeal' within the three-month deadline (for an example, see Lewisham London Borough Council v J D Colbourne [2006] LTL 12/12/2006 (unreported elsewhere)). And on it goes, arguably to the point where the competing demands on the tribunal from the legislation itself can create a position that is too complex to be within the reach of some lawyers, let alone an unrepresented party.



It is not, of course, only the specific employment legislation that creates this tension. The tribunal must also work within the rules of procedure themselves, and in particular the Employment Tribunals (constitution etc) Regulations 2004. This begins with the overriding objective of the tribunals itself - that they should enable a chairman to deal with a case 'justly' (regulation 3). This is, of course, worthy stuff but within it are two specific requirements at regulation 3(2) which can become by nature contradictory. For the regulation expressly requires the 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, but especially so in discrimination claims where the complexity so often demands a tighter reign to be exercised on procedure and where the tribunal has power to make such significant awards of compensation.



A practical example can again be found in regulation 11 (applications in proceedings) of the 2004 regulations, which gives a general right to the parties to make applications to the tribunal for interlocutory orders and so on. Here, not only must the tribunals act in accordance with the overriding objective, but Parliament has also sought to impose an additional burden on a legally represented party under regulation 11(4). When making an application, this ordinarily requires such a party to also write to the other side to explain why they are seeking the order and notifying them that they have seven days to write to the tribunal to object. The tribunal then has to wait.



The rule does not apply in the case of an unrepresented party, who oddly was not thought able by Parliament to do this. Not only is this a difficult imbalance to justify, it can also prove quite challenging when a firm is instructed only a week before the notice of appearance is due and when most unrepresented claimants will object to any application for an extension of time if only on the basis of the survival instinct.



Regulation 10 seems potentially to better balance objectives because it allows sensible directions to be made on the application of the parties or by the tribunal itself (whether or not the parties are represented). Surely, you ask, this is both sufficiently formal and informal? However, while in most cases it may make perfect sense to have early disclosure of documents and statements and so on, am I the only person whose heart sinks when a two-page order arrives, unsolicited, requiring compliance within 14 days when the case is straightforward and the hearing is not listed for four months (or is not listed at all)?



And it is perhaps here, where the legal cost to a represented party in complying with such extra demands, or of complying with orders that have a disproportionate impact upon them, that the system can most break down - with the consequence that the balance can seem so far shifted to an unrepresented party that the other is destined to settle regardless of the merits.



There are 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. Would it not 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 practitioners who work within the system. Remember, represented parties need love too.



Still, on one thing we can all agree: it does give us something else to blame whenever it does not go our own way and for that we can often be truly thankful.