Miriam O’Reilly will certainly be celebrating her recent victory, having won her case against the BBC for unfair dismissal on the grounds of age. The damages which she is likely to be awarded of around £100,000 (according to media sources) will however more than likely be completely consumed by the legal fees incurred in winning her case. This is a common situation for claimants in cases such as this.

On the other side of the fence, the CBI has recently pointed out the cost to business caused by easy access to tribunals by claimants who wish to run employment-related cases. The CBI highlights the fact that companies are faced with a painful decision – either they settle for the sake of economics or alternatively they resist the claim and risk spending sums in excess of the value of the claim.

The cost of tribunals raises a number of questions: Should the bar be raised so that claimants are discouraged from bringing claims? Should there be some sort of mechanism for ensuring only claims which exceed a certain threshold in terms of value should be brought? Should the bringing of cases be made expensive in order to discourage access?

The tribunal system exists as part of the larger system of justice within the UK to ensure that people have an adequate mechanism for seeking some form of redress in the event that their rights are infringed. The right to redress and access to justice is indeed thought by many to be fundamental features of a civilised society. There would be no useful purpose in giving people rights if those rights were not enforceable.

By their very definition, many Employment Tribunal claims will be of low value. The worker, for example, who has not been paid overtime for five hours worked may rightly feel there ought to be in place some mechanism whereby he can claim payment from his employer even though his claim is worth only £100 gross. Similarly the employee who feels that she was not offered work because of her age might feel there ought to be a mechanism for enforcing her legal right to not be discriminated against, regardless of her financial loss.

If some sort of cost benefit analysis had to be carried out before permission to bring proceedings is granted then there is a very real risk that the less well paid members of society will lose out. By definition they earn less and therefore their claims will be worth less.

The Tribunal System, since its inception, has prided itself on its accessibility and so it should. That accessibility of course, as the CBI points out, does come at a price but denying access cannot and should not be the answer.

As somebody who has practised employment law for over 20 years, I have witnessed the ever-increasing complexity of employment law cases in that time. Discrimination cases often involve difficult concepts and we only need to glance at some of the judgments to realise how difficult even some of the top judicial minds find them. Similarly cases brought under the Transfer of Undertakings (Protection of Employment) Regulations involve difficult concepts which require detailed analysis. Aligned with increasing complexity, employment law cases now require more time than ever before. An unfair dismissal case in 1990 might have taken half a day; now it could last four days.

This complexity has a knock-on effect for cost. The more complex and time-consuming a case, the greater the labour input required. As labour is one of the main costs in litigation, it follows that the greater the labour input the greater the cost.

Two solutions might be suggested. The first would be to reduce the labour cost in some way by capping the fees charged. Capping fees would mean that any litigation costs over a certain level would have to be borne by the lawyer. That does not seem right and depending on the extent of the likely loss might mean that lawyers would turn down lower value cases effectively denying representation to those involved. Or they might steer clear of cases where the complexity was likely to cause the costs to escalate.

The other solution would be to reduce the cost by simplifying the law. Such a move would fly in the face of the trends of the past 20 years but if tribunals, and importantly justice, are to remain accessible to claimants and respondents alike, then something has to be done to cut the amount of time which is required by all involved in Tribunal proceedings.

 

 

 

 

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David Ogilvy
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David Ogilvy, Partner in employment law and litigation, Turcan Connell

David specialises in litigation and employment law. He is accredited as a specialist in employment law by the Law Society of Scotland and has over 19 years’ experience of contentious matters in a wide range of areas. He previously served a 5 year term as part-time Chairman with the Employment Tribunal.

David has a wealth of experience in all aspects of employment law as they impact upon individuals. His experience includes representing directors and other senior executives and advising in all areas relating to their relationship with the company, e.g. service agreements, restrictive covenants and other contractual matters and all legal issues arising out of the relationship and its termination.

David acts for a number of high profile charitable organisations in Scotland on all aspects of managing relationships with the work force and represents not for profit clients at tribunals. He has experience of both non-unionised and trade unionised work places and relevant negotiating structures enabling him to advise on practical issues which arise on a day-to-day basis.

Turcan Connell’s comprehensive employment law advice extends to all areas affecting agricultural estates and enterprises and charities, from recruitment to termination.

Chambers UK describes David Ogilvy as heading the three-person team, and is praised for "doing quality work". He is also "widely respected for his contentious employment work".