Supporting our members through tribunals

ASCL's solicitors, field and regional officers were very busy in 2008 working on behalf of members. In the last two years, ASCL issued 21 employment tribunal claims on behalf of members with some very satisfactory outcomes. Compensation settlements and awards have ranged from £5,000 to £200,000.

Some of the best outcomes for our members have involved no financial settlement at all but have resulted in members either being reinstated or permitted to resign rather than be dismissed.

Award amounts of course depend on the individual circumstances of the members, the conduct of the employer and of course the strength of the case. The average award nationally for unfair dismissal claims for 2006-07 was £7,974. The maximum compensation a tribunal can award, not involving discrimination, is currently £63,000.

The bigger awards therefore usually involve some form of discrimination in which case there is no statutory cap on the amount that tribunals can award. However a recent House of Lords decision, (Mayor and Burgesses of the London Borough of Lewisham v Malcolm) has made it much more difficult to succeed in discrimination cases.

Employment tribunal proceedings are not something to be undertaken lightly and anyone considering pursuing such a claim should not underestimate the level of difficulty and stress involved.

Although employment tribunals do not involve the same level of formality as the county and High Court, it is still a fairly rigid procedure and rules have to be followed. Evidence usually is given on oath and it is for the claimant to prove his/her case. Cross-examination is usually by an experienced barrister, particularly where the claim is against a local authority. This can prove to be a daunting experience.

Over 80 per cent of employment tribunal claims statistically settle before they come to hearing. However, over 70 per cent of those that are heard are decided in favour of the employer.

Cases settle for a variety of reasons. Sometimes the employer will take a realistic view of prospects of success based on legal advice and decide that, rather than incurring the additional costs of a lengthy hearing, it may be better to settle early.

Sometimes the employer may take an economic view to settle for a relatively small sum, usually less than £5,000, though it feels its legal case is strong. The reason is that costs are not usually awarded in employment tribunals, unless one of the parties acts unreasonably. A case which takes five days to hear may well cost the employer £20,000 or more to defend - without taking into account the management time and expenses.

Some tribunals now offer judicial mediation as an alternative to a formal hearing. This involves the parties attending the tribunal with a specially trained employment judge acting as a facilitator in an attempt to come to an agreed settlement.

Both parties have to agree to mediation so usually there is goodwill on both sides and settlements are often accepted without the need for a full hearing or witnesses. Again, this route is usually appropriate for value claims and particularly, though not always, where the claimant is still employed by the respondent.

Issuing an employment tribunal claim is rarely a positive career move for a member but sometimes there simply is no alternative, for example where the employer has decided to dismiss and is not prepared to consider settlement.

If ASCL feels that the decision to dismiss is not reasonable in the circumstances we will advise the member to issue proceedings. This is invariably a devastating experience and ASCL will provide the necessary legal support to members who find themselves in this situation.

For further information on the many ASCL membership services and benefits visit www.ascl.org.uk/membership