It has been 4 years now since the abolition of Employment Tribunal fees and no surprise that the number of claims over that period has increased by 130%. As school employment lawyers, we often see unmeritorious claims lodged by disgruntled ex-employees and in many cases these are tricky to handle where the claimant is unrepresented. Traditionally, the Tribunal has been unsympathetic to school employers, but we are beginning to see a change.
Recently we have been successful not only in obtaining deposit orders (where the claimant has to demonstrate sufficient means to pursue their claim by depositing a sum of money with the Tribunal in case a costs order is to be made) but also orders to strike out claims where claimants have failed to meet Tribunal deadlines and generally shown a lack of respect for the Tribunal processes.
Whilst in general in an Employment Tribunal, each party pays its own costs, costs can be awarded by the Tribunal meaning a "losing" party can be obliged to pay the costs of the "winning" party (subject to a cap of £20k). It is rare for meaningful costs to be awarded against an unrepresented individual, but not unheard of and we recently supported a school where the Tribunal ordered the claimant to pay £18k towards the school's legal costs.
This highlights an important point of principle that schools are custodians of public money and, whilst of course they have no choice but to defend Tribunal proceedings, it may be appropriate to actively pursue costs in order restore the public purse. It also serves to highlight the risk to claimants of using the Tribunal to settle grievances, which might better have been dealt with under the school's usual policies or by mediation.
We have prepared a summary of the initial steps involved in a claim which is made to the Tribunal (click here to download). We would remind schools to be watchful for papers being sent by the Tribunal and the short deadlines for responses. Increasingly the Tribunal is setting dates for a hearing at the initial claim stage in order to consider straightforward claims and in an attempt to clear the backlog which has built up during COVID.
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