Both parties at an employment tribunal have the discretion to represent themselves for their case. However, notwithstanding that Employment Tribunals often being regarded as less formal than other proceedings, there are procedural similarities that may be difficult for an individual lacking legal expertise, especially if they have been subject of distressing discrimination.
If an individual brings a claim against their employer, they are likely to be met with the employer’s solicitor or barrister; it is extremely unlikely that the employer will represent themselves. This quite clearly will show a skills imbalance, and while the Tribunal judge is required to take all reasonable steps to account for this imbalance within their decision, in practice those without representation can find themselves worse off. Even with a credible case, those that opt for self-representation might not present this in a well-established way, falling short of the legal burden, and thus being unsuccessful in their claim.
With this in mind, it is generally advised to have some kind of representation, where you can.
Does the representation have to be a solicitor?
The costs of acquiring a solicitor or barrister are often possible for employers, but for an individual party, the legal costs can be a burden, especially because the costs are likely to be unrecoverable (as below). An option, therefore, is to be represented by a full-time union officer, however, they can sometimes lack the necessary experience in presenting cases and properly considering the legal issues, the same way an individual might.
Who pays legal costs in a Tribunal?
The general rule is that each party pays its own legal costs (how much it costs to bring the case with representation to the tribunal). As a general rule, the losing party will not have to pay back any of the legal costs incurred by the winning party, unlike in the civil courts, where the default process is that costs are recoverable.
In exceptional circumstances, a party can be awarded costs against the other party. However, this is only where the other party has acted unreasonable or vexatiously in pursuing the claims, or the party knew that their claim or defense had no reasonable prospects of success, and yet continued with the claims nonetheless.
Things to consider if you choose to represent yourself:
- Reasonableness of your claim – is there good grounds for arguing your case? Do you have evidence that you can present to support this?
- Time limits – are you in time? Claims must be brought within three months less one day, and the Tribunal have never little jurisdiction to extend this, where claims are out of time.
- Are the claims right – if you fail to explain your claim properly in the first instance, if you then try and amend this, or add new claims, it may be that new claims are now out of time.
- Behave honestly and reasonably – follow the judges ‘directions’ before the hearing, and during the hearing, tell the truth! You could be required to pay the costs if you do not.
- Don’t hold back information – when making the claim, ensure you disclose all the information that you are aware of. If you omit any facts in the claim that are revealed in the hearing, you could be ordered to pay the costs.
- Keep an account of the preparation time – Judges have the power to make a ‘preparation time order’ which is the costs incurred during the time of creating your case. This cost should be included in the claim presented to your employer, and you should warn your employer of your intention to include this.
How can Thrive help?
From tribunal claims to draft grievances and appeal letters. We know how daunting the legal process can be for employees, we are here to help. We will take off your case from start to finish ensuring you know exactly where you stand.
We can also support individuals by negotiating settlements agreements with your employer to get the best possible outcome for you. This can be an obvious route to avoid lengthy Tribunal claims and the stress of self-representation. We provide these services whilst being completely transparent as possible with you about the costs.
Before commencing work on your behalf, we shall do an initial review and then inform you of any additional costs and ensure you fully understand how your legal fees are calculated, in writing, before proceeding with any case.
Whilst most firms operate on an hourly rate, we prefer to offer our clients a fixed fee (wherever possible) to assist our clients in managing their legal costs. Approximate Tribunal costs are available here.
Please note this blog is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. Please contact us if you have any questions on firstname.lastname@example.org