Litigants in person – more than a helping hand?
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An interesting case will soon be heard by the Court of Appeal concerning the amount of assistance that an Employment Tribunal should provide to claimants who represent themselves at hearings.
In Guest Engineering Ltd v Vaio, the Employment Tribunal had to decide upon several claims brought by an employee, including a claim for unfair dismissal after he was made redundant by his employer. The Tribunal found in the employee’s favour, on the basis that his dismissal had not been by reason of redundancy as the employer had sought to reduce its workforce by one, which had been achieved by another employee retiring. However, it was the Tribunal panel that primarily raised this particular issue which had not been included in the claimant’s claim form, the further and better particulars provided or his witness statement.
The employer appealed against the decision, arguing procedural unfairness as the employee had succeeded on a wholly new point which had been raised by the Employment Tribunal. The EAT agreed with the employer and allowed the appeal, noting that the employer had not been given a fair and reasonable opportunity to deal with this new point. However, the employee has successfully applied for permission to appeal to the Court of Appeal on several grounds, including that it was wrong for the EAT to conclude that it was procedurally unfair to provide assistance in the way that it did.
It is easy to see why this issue is a bone of contention for both employers and employees alike. From the employer’s point of view, it is understandable that they could feel that the Tribunal is going out of its way to help the employee with the claim. On the other hand, employees who represent themselves are not experts in employment law and will therefore think it is fair that a Tribunal should assist in pointing out certain issues which they may not have identified, otherwise they will be at a disadvantage and the employer may escape liability in circumstances where it should not have. This issue may become even more prominent next year with the introduction of fees to issue a Tribunal claim which could see a rise in ‘litigants is person’. It is hoped that the Court of Appeal will clarify exactly the extent to which Tribunals should help claimants with procedural matters so that employees and employers know where they stand.
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