The Evil Employment Tribunal

There is a process so bent and broken in UK employment law that it can only be described as depraved. Employees have an automatic right to a take their employer to an employment tribunal based on length of employment alone. You may wonder when first reading that last sentence how such a process can be so dangerous. The problem arises because the right is conferred on the basis of time and not merit. There is no need for the employee to show any just cause for filing a complaint against their employer, and no possibility for the employer to avoid the costly process involved. Any employee can apply and every employer must respond.

Employees typically file a complaint with an employment tribunal if, for example, they had been made redundant but felt that they had been unfairly dismissed. This is surely a valid right of employees most reasonable people would agree. The problem is that reasonableness is not necessary due to the blanket nature of the employee's right- obstructionism and malice are just as good reasons to file a complaint.

I first came across the fundamentally flawed process when an employee took me to an employment tribunal because he thought that he had been made redundant and then replaced a few weeks later by someone else. A few days after this employee had been made redundant, another staff member had resigned and been replaced. The new person replaced the person who had unexpectedly resigned and not the employee who had been made redundant.

As the employer I had to prove that the employee's position had really become redundant, and also that he had not been replaced and also that I had met my obligation to re-employ that employee which tenuously exists in UK employment law. The claims were entirely without merit- I had not only met but far exceeded the minimum standards that employers have to show their employees (the position had first become redundant a long time before I actually made the person redundant, having run out of alternative choices). But of course it was my word against his and there are two sides to every story and if you throw enough mud, then something might stick. It is tremendously difficult to retrospectively defend every claim that is made- of course no-one is perfect because it is not a perfect world so there maybe some hole somewhere. In my case it came down to how many times I had tried to contact that employee in an attempt to re-employ- of course ideally in retrospect I would have rung him many, many times but of course the reality at the time was that I was too busy chasing people that owed me money to chase former employees. Once you get into a tribunal, anything can happen- a lot depends on how you come across and as my lawyer said to me- the stupidest witnesses are often the best since they come across as completely believable. Of course no-one's heart automatically bleeds for the poor capitalist employer.

The employment tribunal is not a court of law but it does have similarities. There are three people sitting on the tribunal- typically this includes an employer friendly representative from a group such as the Institute of Directors or Confederation of British Industries and an employee friendly representative from a trade union group or similar. You swear that you are telling the truth and then read out a pre-prepared witness statement and are then cross examined by the employee representative. The employee then reads their statement out and the employer's solicitor cross-examines the employee. There is a public gallery where anyone can watch the proceedings. (Of course everyone at the hearing is only there because the entrepreneur took a risk and made a decision to employ another person- without the employer there would be nothing- the rest of the people in the room relied on entrepreneurs like me for their work).

The actual case itself can take several months to get to a tribunal. Witness statements and evidence are not exchanged by the parties until a couple of weeks before the tribunal is due to sit- when the process has gone too far for it to be halted even if the evidence disproves the original claim. There is a lot of stress incurred by the employer (and employee) who can't help but go over events and arguments in their head over and over again, irrespective of whether the conduct was good or bad. There is also a lot of cost involved- it cost me several thousand pounds in legal fees to defend myself and my company against the former employee's claims. There is also damage to reputation and forced disclosure of confidential business practices and commercially sensitive details about business status in a sworn witness statement read out in a public forum, along with potential fines from losing the case- compensation is usually calculated on lost earnings from the time employment ended to the time that employee got another job. Only in extreme cases are huge punitive fines levied- the example my lawyer charmingly used that the employer makes passes at a teenage employee and then fires that person when the advances are resisted.

Again, it strikes me that a lot of the foregoing discussion might strike you as being perfectly reasonable and the right of employee to have a fair hearing and understand the basis for an employer's decision about their employment. I do respect the outcome of the tribunal since baseless claims will mostly be dismissed with tiny remedies. So let me show you how the law of unintended consequences works in the case of this employment tribunal practice- by giving an example of how the automatic right loophole could be exploited.

In many countries around the world an industry has been built up around personal injury claims in which people who have a trip or fall can sue for damages. They take out insurance to pay the lawyers with whom they split any winnings. In this system there is also no burden to prove that the claim has validity- the right to sue is a universal one. This same system could easily be extended to employment tribunals, with ANY employee made redundant for ANY reason who has been working for that company for just a short time and therefore meets the time minimum is able to take action against their former employer, who would either settle or incur the time and money consuming process of depending the claim. A veritable industry could be built up around the loophole with millions made from spurious claims made against employers.

In my case, the employee was represented at no cost to himself by the bleeding heart liberal do-gooders at the Citizens Advice Bureau- one of those evil charities who supposedly help the little man stand up for his rights- further proof, as if any was needed, that the old adage is still true- the road to hell is paved with good intentions.

The solution to close the loophole and solve the fundamental flaw in the current employment tribunal process is fairly clear to me- it goes back to my opening comment about the existing process being based on time rather than merit. In my view, the current system should be modified such that the (sealed, private) witness statements and evidence should be produced within a month after the initial complaint is filed by the employee, rather than a month before the case is due to go before the tribunal (which as I have explained can be several months after the initial complaint is filed). The tribunal panel should then make an initial majority decision to allow the case to proceed to a full public tribunal based on the strength of merit of the employee's claim. Of course as I have said there is always some merit somewhere in any claim- even a CAB volunteer can find something somewhere with which to go against an employer's conduct. But the overall validity of the employee's claim can easily be established in the same way as within the court system where something only goes to trial once it has been established in a pre-trial that there is sufficient grounds and evidence for there to the likelihood that the defendant will be found guilty.

Of course I am left feeling paranoid about this process, hence my use of the word 'evil' which many people would consider too extreme. But when holes in our system of capitalism exist such as this it is the thin end of the wedge and each individual who respects democracy enough to protect what is right and not allow the enemies of fairness to use the process for their own evil ends. As with jury service and so many other similar processes in our societies that are fundamentally wrong ways to achieve their desired ends, an obligation in law has legitimised the wrongness and given it a superficial veneer of legitimate rightness. The end does not justify the means.



Author: Simon Buckingham

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