The Kitchen Sink – uses thereof
You can’t have everything. Where would you put it? (Acknowledgements to Steve Wright, the American comedian). Well, sometimes pretty much everything goes into a claim to an employment tribunal.
The prospect of such a claim can affect individuals differently. Some claimants are motivated by considerations of principle. These are the ones most unlikely to compromise and therefore most beloved of the legal profession. Money is generally no option. Others are overcome with a desire to purge their souls – to put before the tribunal their every grouch. Lawyers are also pretty fond of these guys. They adopt the colonic irrigation approach to litigation: flush it all out so that everyone can have a look at it.
Typically, such claimants will be alleging discrimination or whistle blowing. Anyone who has been employed a reasonable period of time will have a number of complaints they can make of their treatment by their employer. The “jam against the wall” claimant will allege that every aspect of the employer’s behaviour that displeased them was on account of their having made damning disclosures, or possessing a protected characteristic, such as disability.
A claim of this sort is likely to contain literally dozens of distinct allegations. The employer will have to take statements from a large number of witnesses and attend a trial that can literally last weeks. They are likely to incur substantial, irrecoverable costs.
“Hit me with your best shot”, besides being a minor hit for Pat Benetar (don’t pretend you don’t remember it) has characterised the attempts tribunals have made, over the years, to limit the scope of such claims. The last such effort was in the case of Tarn v Hughes. Sadly, without success. There were 46 individual causes of action (by no means an especially high number) requiring the resolution of 180 issues. In what was no doubt a desperate effort to make the case manageable, the tribunal directed the claimant to select the 10 best ones.
This laudable approach was sadly rejected on appeal, where it was decided that such a power should only be exercised in exceptional circumstances.
It isn’t all doom and gloom. The scattergun approach has distinct dangers for the claimant. It is always quite likely that a number of the claims can be shown to be demonstrably unmerited. The tribunal is likely to conclude that if the claimant has so badly misjudged the situation in those respects, their judgment in relation to the more contentious ones is not to be relied upon.
Such a claim will also in almost all situations have been the subject of an internal grievance. An employer will therefore know well in advance what it is likely to contain. What’s more, the resolution of the grievance may well present an opportunity to “spike the guns” of such a claimant, if handled correctly.
The fact remains, however, that a vast amount of time and money will be expended in defending clams of this sort, however successful the eventual outcome.
The overriding objective of the tribunal rules of procedure includes dealing with cases in ways that are proportionate to the complexity and importance of the issues. A reasonable limit on the ambit of the claims would seem to be consistent with such proportionality but the employment appeal tribunal have made its application much more difficult. So much for the overriding objective. The overriding impression one is left with is “suck it up”.
With the latest figures from the Employment Tribunal service confirming the number of claims approximately 70% above those of a little over a year ago it is perhaps even more important for employers to use every tool at their disposal to avoid their featuring in those statistics.