Fewer than half of employment tribunal claimants use lawyers

Tribunals: Employers far more likely to have legal representation than claimants

Fewer than half of employment tribunal claimants use a lawyer, with most of those unrepresented at hearings saying it was because they could not afford one, according to government research.

The Department for Business, Energy and Industrial Strategy found that older and better-paid employees were most likely to seek advice.

The five-yearly survey of employment tribunal applications – conducted in 2018 but only published last week – spoke to 2,663 litigants whose claims were disposed of in the year to October 2017, split roughly equally between employees and employers.

In all, 46% of claimants used a lawyer for some or all of the proceedings.

Notable outliers in the data were those aged under 25 (just 24% used a lawyer), black claimants (33%), those earning less than £20,000 (33%), and those working in skilled trades (29%) and sales and customer service (33%).

The use of a lawyers was more common among claimants with larger salaries and/or in more advanced/senior occupations. Claimants with lower salaries were more likely to use other, less costly forms of representation and advice.

Claimants also used trade union representatives, Citizens Advice, and friends and family, while employers also turned to HR specialists.

In all, 70% of employers and 57% of claimants had a ‘day-to-day representative’ of some sort to help them with their case, compared with 60% and 52% respectively in 2012 – a lawyer, in the majority of cases.

Employers were far more likely to have legal representation at hearings, 77%, compared to claimants (41%) – both figures were notably up on 2012.

The main reasons for not having representation were being unable to afford it (58% of claimants, 15% of employers) and thinking that they could handle the hearing on their own (20% of claimants, 57% of employers).

Claimants were most likely to have representation in discrimination and breach of contracts cases, and least likely in unauthorised deductions from wages claims.

Female claimants were more likely than men to have had a day-to-day representative (62% compared with 53%), which the researchers suggested may be because they were more likely to bring discrimination claims.

Claimants were more likely to settle if advised by a solicitor. More than half of cases (58%) settled, mainly through Acas.

One in six claims went to a full tribunal hearing (17%), where claimants were more likely to be unsuccessful than successful. Having representation of the hearing unsurprisingly made it more likely that a side would win.

Nearly half of claimants (47%) who had professional assistance at some stage said it was free (compared to 65% five years earlier), with lawyers the main source of that free help.

The remainder either paid for all the help and advice (38%) or just some of it (13%). Some 73% of employers paid for all their advice and 8% for some of it; just 15% received it for free.

The median amount paid in fees was £5,000 for employers and £2,500 for claimants, up from £3,000 and £2,000 respectively in 2012.

Employers were more likely than claimants to be insured to cover legal expenses (33% compared with 16%), although claimants were slightly more likely than employers to say they were a member of an organisation that would cover costs (11% compared with 6%).

Overall, 69% of employers said their experience of dealing with an employment tribunal application resulted in the organisation taking some actions, most commonly ensuring that existing procedures were followed (58% said this), followed by seeking professional advice prior to taking disciplinary action (29%). The corresponding figures in 2012 were 41% and 22% respectively.

The majority (60%) of claimants said that they were satisfied with the workings of the employment tribunal system overall, down from 72% five years before. Two in three employers (64%) were satisfied with the system, the same as in the previous survey.

    Readers Comments

  • Sarah MacDonald says:

    Many lawyers simply won’t take the cases on. A relative needed one earlier this year and was told it was wasn’t worth their while!

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