Employment tribunals: 'I sued my boss and won'

By Dan Ascher
Business Reporter

  • Published
LoubserImage source, Malcolm and Charlotte Loubser
Image caption,
Charlotte Loubser says bringing the claim was hard work and very emotional

In the early stages of a difficult second pregnancy, Charlotte Loubser had been sick, nauseous and found herself unable get out of bed.

The birth of her first child had been troubled and her second pregnancy was considered high risk, so the doctor signed her off work in the early months.

However, after she passed the 12-week stage in the pregnancy, Charlotte felt ready to go back to work at a hairdressing salon where she was a receptionist.

But on the afternoon she was supposed to return, in January last year, she received a phone call saying she was no longer needed.

"I was obviously extremely upset, my husband was angry," Charlotte said.

'Very draining'

When she didn't receive her wages, Malcolm, her husband, wrote an email to the salon owner. But after receiving no reply the couple joined a growing number of people who are bringing claims against their former employers.

It wasn't easy. "It's a lot of work, it's really emotional and it's very, very draining," said Malcolm who did a lot of the legal work on the case, even though he's not a lawyer.

And it worked. Charlotte was awarded about £2,000 in wages that had been withheld and £15,000 in compensation, although the couple have only seen a fraction of the cash.

Charlotte would warn anyone considering bringing a claim to "take it seriously".

"It was so much hard work and it was so emotional."

Image source, Malcolm and Charlotte Loubser
Image caption,
The Loubser family

The Loubsers did not have the money to pay for a lawyer but even if they had, it may not have paid off. In almost all cases, claimants are left to pay their own costs and that leaves many with no choice but to go it alone. That can leave them at a huge disadvantage, according to employment barrister Bruce Carr.

He's seen an increase in the number of people representing themselves in employment tribunal cases. But he says the complexity of the process is a "huge disincentive" for those considering bringing a claim. "It's quite intimidating," he says.

In the past year, the number of people making a claim to an employment tribunal has increased by 10%. The courts accepted a total of 121,075 claims last year, according to figures from the Ministry of Justice (MoJ).

The number of claims soared in 2017 when tribunal fees were scrapped after the Supreme Court ruled that it was unlawful to charge people to bring a case. That has left the tribunal system understaffed.

"There are more delays than there used to be because there just aren't enough people to handle those claims at the moment," says Daniel Cotton, an employment lawyer at law firm DWF.

Whereas claims used to be dealt with in a matter of months, Mr Cotton says it's not unusual for the process to take more than a year now.

The Ministry of Justice told the BBC it had hired an extra 58 judges to deal with additional claims. But Mr Cotton says the tribunal system is more complicated than it used to be.

"The tribunal system was designed to be user friendly, so to be accessible to general members of the public without legal representation," he says. "It probably has moved quite a long way away from that."

However, the MoJ said it had spent £8m on support measures for litigants in person and has pledged another £3m.

Cost pressures

Even though he is representing himself, Paul (not his real name) says he felt relaxed walking into the tribunal room, which looks more like a conference room than a court.

Paul is suing his former employer for racial discrimination and constructive dismissal after he was let go last year.

He didn't want the BBC to report his name or the specifics of his case for fear of harming his future employment prospects.

He filed his claim in December last year and since then he reckons he's spent a month working full-time on the case. He swotted up on the law by reading cases online and watching YouTube videos.

In the hearing, Paul is the first to take the stand. The pressure is on, as his former employer has threatened to try to force him to pay its costs if he loses the case.

Image source, Getty Images

In employment tribunals, those bringing claims are rarely asked to pay the other side's costs, unless the judge decides that they were acting maliciously and deliberately making things more expensive for their former bosses.

Paul said the threats over costs were an attempt to intimidate him and he thinks the lawyers used that tactic because he's a litigant in person.

Mark Doherty - who went through an employment tribunal five years ago - thinks that's a problem with the system.

After he filed his claim, lawyers bombarded him with paperwork.

He said "letters came in almost daily" from the law firms "in order to wear you down and make sure that you collapsed and did not take [the case] any further".

"It is bullying tactics on the parts of lawyers that pummel claimants into submission," he said.

Mark describes himself as "long in the tooth" but he fears younger workers may be intimidated by the tactics.

"They wouldn't have done it, they would not have gone all the way through because the big lawyers would have pummelled them into the ground with document after document."

"A lot of youngsters do not have the wherewithal to contend with that," he fears.

How to bring an employment tribunal claim:

  • If you think you're about to be let go, document everything.
  • You have a right to appeal, although it's rarely successful, according to employment lawyer Daniel Cotton.
  • The first step to bringing a claim is to contact Acas, the Advisory, Conciliation and Arbitration Service. Its advisers will take details of what happened and contact your former employer to see if a settlement can be reached.
  • If that fails, it's time to make a claim to the employment tribunal. This can be done online and should normally say what happened and why you think it was unfair, as well as examples of any behaviour that may strengthen your case.
  • Once the court receives your claim form it will decide whether to hear the case (it normally does).
  • In most unfair dismissal cases, the court will send you and your old boss a set of instructions on what to do next.
  • Normally, the first thing will be to produce a "schedule of loss". This is a document that outlines how much you think you are owed and why.
  • Then it's disclosure. This is a list of documents that will be shared between you and your employer - or ex-employer - that show what happened and when.
  • All those documents should then be pulled together into a bundle - this will usually be done by your old employer and shared with you.
  • Finally, write your witness statement. In most cases, this should be a detailed account of what happened and when, with reference to the evidence in the bundle that proves it.