Are employment tribunals biased against employers?


Date: 7 September 2011

Weather vaneTo misquote a recent television commercial for California…. “People have a lot of misconceptions about [employment tribunals] and most of them are wrong…” – I always thought that all misconceptions were wrong, otherwise they wouldn’t be misconceived. But California has different rules, and so does the Employment Tribunal.

Getting a good result in an employment tribunal is one of the most satisfying parts of my job, so it pains me to say that an employment tribunal hearing is not an experience that I would wish upon any employer. It is a tiring, draining and fundamentally risky place to be for any employer.

I have a lot of experience of representing employers in employment tribunals, and I am often asked whether employment tribunals are biased against employers (or indeed I may be told that they are). But this is a misconception (and yes, it is therefore wrong).

There are judges and tribunal members who are more likely to look at things from an employee’s perspective, but the opposite is equally true. Having said that, an employment tribunal’s decision is as likely to turn on believability (even likeability) of a witness as much as on the evidence, and the mood in a hearing can change like the wind.

That is one reason why it is so important to have legal representation at the hearing and throughout the process, even though sometimes even that won’t be enough. Ultimately though, with the right preparation most employment tribunals will get it right most of the time.

The difficulty is that it is impossible to predict with certainty how things will go on the day. How things should go, is not the same as how they will go. This is not so bad for the Claimants (employees) who have little or nothing to lose and are often without legal representation. The employer, on the other hand, will have incurred legal costs, loss of management time, and reduced productivity - even if they win. So, do you feel lucky?

The risk and the cost often rest wholly with the employer. It is for this reason that you could say that the system is loaded against the business, which has no choice but to incur time and expense in defending a claim, and to that extent you could say that the system is biased against employers. So maybe that is a misconception that is right?

Matt Huddleson is a specialist UK employment lawyer and law firm partner with Foot Anstey and Wordpress law blogger.

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