Why should you use a barrister for an Employment Tribunal?

Anthony Korn, a senior barrister who has over 30 years experience in employment and discrimination law, explains why anyone faced with a hearing before an Employment Tribunal should seek expert assistance from a barrister.

The simple answer to this question is that independent statistics from the Employment Tribunal Service have consistently shown that represented parties stand a 50% greater chance of success than those who are not represented. That does not mean that being represented by a Barrister guarantees success but it very much improves the chances of success.

And it is not hard to explain why. When tribunals were set up in the 1960s they were intended to be free, accessible, less formal and more expeditious. All this has changed.

Before 29 July 2013, it did not cost you anything to bring a tribunal claim. Since then it not only costs to bring the claim but also for the claim to be heard. To make sure that this is money well spent, at the very least it is worth having a merits assessment before presenting the claim.

Whilst tribunals are still slightly less formal than ordinary courts - there are no wigs and gowns, for example - whereas in 1980 there were just 17 rules of procedure, there are now 106 rules in Schedule 1 to the Employment Tribunal Rules 2013 alone. So, it is extremely useful to have a barrister involved who has a specialist knowledge of the rules of the game.

Tribunals have also become more formal in a number of other ways: the parties are now required to use a prescribed form in bringing a claim and defending. It is important that the Claim form identifies the legal claims which the Claimant wishes the Tribunal to determine right from the start because it is difficult, sometimes impossible, to amend at a later stage.

It is also important to identify the issues before the case begins: in more complicated cases this is done at a preliminary hearing and a barrister can help you to do this.

There are also other pre-trial process where a barrister can assist you, for example the disclosure of relevant documentation and the preparation of witnesses statements. This is now compulsory in all cases.

And then there is the presentation of the case at the hearing. You can get a ‘feel’ for what takes place at a hearing by going to see another case in action before your case is heard but you will be greatly assisted if you are represented by a barrister in having your case presented in its most persuasive manner. TV Court room dramas, particularly criminal court room dramas, are a very unreliable guide as to what takes place in an employment tribunal. Sadly, litigants in person often so obsessed with trying to show that the opponent is a liar that they forget what the case is about.

Recently, I witnessed the Claimant in a race discrimination cross-examine the employer’s witnesses on a load of health and safety issues which had nothing to do with his case. Barristers have the ability to distinguish between what is and what is not relevant and are trained in the ‘dark art’ of cross-examination and making the most of the documentary evidence to support the case.

Finally, there are now volumes (and I mean volumes) of reported case law. Instead of having to research this for yourself, a Barrister will make legal submissions on your behalf.

A Barrister cannot of course turn a bad case into a good case but can be the difference between winning and losing.

Anthony Korn