If I had a tenner for every time someone calls didlaw and says they want to take their employer to Employment Tribunal there would be a big stash of brown notes in the corner of my office. It seems like a good idea, when you are upset and angry about how you have been treated but is it really? Is it really a good idea to sue your employer in the Employment Tribunals? Is it worth it? Believe me there are plenty of lawyers out there who will happily persuade you that this is a good idea but in my view, it should be the very last thing you do unless there is literally no alternative. I will explain why.
Time, money, stress â litigation should carry a health warning
The obvious reasons to avoid litigation are that it takes a lot of time, costs a lot of money unless you are a litigant in person but above all it is horribly stressful. It is stressful in particular because it involves you reliving over and again the issues that have led to your claim. This keeps you in a holding position, you cannot move on. Mentally this is never a good idea and in serious cases we see clients who become so obsessed by their case that they cannot move on and that they develop even more serious health issues. They are effectively re-traumatised. The impact on close relationships cannot be underestimated either. I appreciate entirely the desire to get justice but at what cost? Principles can be expensive.
What is my claim worth?
Aside from the health warning that litigation should carry with it there are other reasons why an employment tribunal claim might not be the best thing for you. Many clients who come to us do not understand how the employment tribunal determines financial losses. People who have had a horrible time and been treated appallingly think that this is what the tribunal will focus on. What the tribunal focuses on primarily is what you have lost in wages and other pay and benefits. This means that if you have already secured a new job (which in legal terms we call mitigation) this heavily reduces the value of your claim because you have stemmed your future financial losses. Added to this the tribunals are notoriously reluctant to award significant future losses in all but the most serious cases.
Get a merits assessment â will I win?
It is vital to understand the actual likely value of your claim, on a good day, before you embark on litigation. You must get an assessment of legal merits and likely financial award before you go down the road to tribunal and try not to be angry or upset when you find out that your claim is not worth very much. Quite often the cost of running a claim with a lawyer will outweigh the benefit of what you will win. What is the point in that??
Radical honesty and ethical practice
At didlaw we are built on radical honesty. Sometimes it causes friction and frustration with our clients but we practice ethically and will not lead anyone down the garden path. There has to be a significant likelihood of a future benefit for you for us to encourage you to litigate. Sometimes we will start the process to bring the other party to the negotiating table because we know some employers will not settle unless there is a real threat of adverse publicity or because our client is seeking a significant award. We also have a duty to protect your position.
What about your reputation and employment prospects?
The other thing to think about before you start an employment tribunal claim is your reputation. Employment tribunal decisions are now published online. Even if you only start the claim and then withdraw or settle it your name will be on record for future employers to search. It is not just employers that need to be conscious of the reputational damage of litigation. Anything else that you put in evidence will also become a matter of public record, for example, the details of any disability you may have which you may wish to keep confidential.
Consider the alternatives
I am not suggesting for one minute that you should let discrimination and other detrimental treatment go unchecked but you would be wise to consider alternative ways to seek redress. These include negotiating a settlement but understand that this will come with a raft of obligations on you as regards confidentiality. Consider whether reporting your employer to a regulator might be an option that is less likely to have blow back on you. Consider mediation. Done well it is very powerful. Judicial mediation is another option. Acas provides a free conciliation service. You could simply use your energy to find another job and walk away putting it down to a bad experience but being able to move on constructively with your life. As we say, life is short.
When I am talking to clients I tell them honestly that I would not embark on litigation and I would not advise anyone I like to do it either. Of course, there are circumstances where it is appropriate and is the only option but seek frank advice from an ethical lawyer who will tell you what is best for you and who will be able to find an alternative solution.
This blog was written by Karen Jackson, Founder – CEO of didlaw and experienced disability discrimination lawyer and litigator.
