Recent MILS Win: Non-Compliant Litigants at Employment Tribunals

24 October 2024

The widespread practice among certain law firms and Employment/HR “consultancies” of “no win, no fee” arrangements in Employment Tribunal claims, alongside no charges for the making of claims, means that sadly it is often all too tempting for employees to make spurious or non-compliant claims upon termination with no risk of suffering any repercussions should they lose.

Indeed, in our experience many employers are surprised not to receive a claim in the post upon dismissing an employee, which serves to highlight the very difficult legal climate in this area. With recent announcements from the Government about changes to unfair dismissal (due to come into force in 2026), we expect these claims unfortunately to become more frequent.

MILS members often complain to us about how unfair it is that ex-employee litigants go unpunished by the courts when they are found not to be in compliance with Tribunal rules to provide proper documentation, witness statements, schedules of loss, or even attendance at hearings, and this is when we have shown time and again the benefits of involving properly regulated barristers and solicitors at the earliest opportunity.

In addition, no matter how flawless the disciplinary process may have been, an ex-employee can still make a claim, and a significant issue for these claimants is that representation (particularly in discrimination matters) can be prohibitively expensive, forcing many to act as ‘Litigants-in-Person’ (‘LiPs’) fighting their own case.

This is every person’s legal right of course, but often results in non-legally trained individuals trying to navigate the legal system. Unrepresented parties can often then be viewed by the Tribunal in a sympathetic light and afforded an extreme amount of leniency when it comes to compliance with the rules. The process at MILS is designed to ensure a tough but fair approach to such LiPs, meaning that where our members suffer a detriment this is put to the Tribunal’s attention at the earliest possible stage.

For example, in a recent case we conducted, an ex-employee made a claim against our client in the Employment Tribunal for damages of over five figures. The Tribunal set out the court orders and the ex-employee, who was unrepresented, failed to comply.

In most circumstances the Tribunal would not take any action at all and, as above, might even take an overly sympathetic view given that the ex-employee was unrepresented.

Many law firms are known to let matters drag on passively in these matters, only really dealing properly with cases and non-compliance when they come to trial. MILS members, however, can expect a different approach when facing this scenario; we constantly monitor cases, documenting non-compliance by opposing parties and then raising this with the Tribunal at the first opportunity. In this particular matter, the ex-employee stated that he was not in a position to comply as he had no representation and was unemployed, which is a commonly used excuse. Often the Tribunal will let this pass, to the clear detriment of the employer.

MILS lawyers documented each instance of non-compliance with the court orders, and then applied to the Tribunal to have the matter struck out before it reached final trial. Although the Tribunal was adamant the matter should proceed, our persistence meant that it was eventually converted to a hearing where the entire claim was struck out.

One of our in-house MILS barristers argued persuasively that the final trial was prejudiced by the litigant’s non-compliance, and that the rules are surely there for a reason. Tribunals are not often persuaded to strike out claims unless they are presented with a properly documented case supported by case law, which MILS is well equipped to provide. By striking the claim out, our client was spared the financial and corporate difficulties involved in having to appear at a full Tribunal trial and in making their employees give evidence, alongside the potential of paying damages if the case was lost.

The above illustrates how at MILS we lay great emphasis in assisting members at every stage in the disciplinary process, so ensuring the best chances of successfully defending any claim.