Do Employees Have it All Their Own Way?

How not to Resolve a Dispute or Why Employees should never try to wear traffic cones

(picture right)  How Not to Resolve Disputes or Why Employees Should Never Wear Traffic Cones

I’ve had this question (or more usually) statement put to me a few times  just recently, most recently in a comment on this blog and the second by a delegate at a talk I gave at the City Business Library last Friday.  Both were employers that thought UK employment law gives employees too many rights and opportunities to sue employers already burdened with a vast number of rules and regulations.  In one obvious sense they are correct: employees have a vast number of rights of action available to them, from asserting a statutory right, via anti-discrimination legislation, equal pay, unfair dismissal and unlawful deduction of wages, to whistleblowing.  The concept of unfair dismissal only dates back to 1971 and employment law is very much a young upstart in English law compared to most other types of work. Also, the number of claims brought at Employment Tribunals has increased year on year (save for last year where there was a 20% decrease in the number of claims lodged at the ET – click here to go to the ET’s statistics report *)

Since 2004, when the government introduced statutory disciplinary and grievance procedures intended to promote dispute resolution between employers and employee internally, the number of claims being commenced at the ET has increased dramatically.  However, is it right to say that employees have everything their own way and that employers no longer have the freedom to manage?

There is no “costs-shifting” jurisdiction as of right in the ET. In other words the winner doesn’t automatically get his legal costs paid by the loser.  A Claimant also does not need to pay a fee to the ET to commence his claim; the form can be filled out online and submitted easily.  No wonder employers feel the balance has shifted too far towards the employee.  But look at it from the point of view of the employee.  Although they may have the right to, for example, request flexible working, comparatively few do.  Many also complain of work situations where they want to claim constructive dismissal, but few do because of the risk of resigning without a job to go to.  Further, every employee is under a duty to mitigate their financial losses, so if they do make a claim and also obtain an alternative job they will cut down what they might recover from the Tribunal if they win.  And that is another big issue and,  as the statistics show, most don’t win at Tribunal.

The main and justifiable complaint by employers is that employees can issue a claim, lead the employer into expense of time and legal costs and force the employer to settle the claim before it goes too far, in order to avoid costs getting out of hand.  The availability of no win no fee agreements means that employees can mount claims that perhaps they would not have been able to do in the days when they would be paying a traditional retainer fee.   In some cases, as I’ve discussed in previous posts on serial litigants, some unscrupulous people can make money from making repeated ET applications in the hope that the defendant business will pay up early to avoid the publicity or ongoing legal costs.   Whilst those type of claims may be a small minority,  you have to weigh the cost of preventing those claims against the need for access to justice and allowing employees with a genuine complaint to be able to bring their claims.

* That 20% figure may be artificially exaggerated because of the effect of  10,000 airline cases brought under the Working Time Regulations.  The report itself notes that the real decrease, ignoring these claims, may be a decrease of 4%.  The ET statistics also state that only 13% of the claims submitted were successful at Tribunal (i.e. the Claimant won), 33% were withdrawn (presumably because the employee was advised that they did not have reasonable prospects of success) and 32% were conciliated by ACAS.  In other words, employees may have many potential rights of action available to them, but less than half actually obtain any benefit from the claims (I say this on the assumption that all of those conciliated by ACAS led to some form of financial settlement for the Claimant: in most but not all  cases this will be so).

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