Tucked away in a little-known corner of the Government’s Response to the public consultation on its paper Resolving Workplace Disputes is a little gem of considerable potential significance to employment lawyers and HR/legal staff involved in Employment Tribunal proceedings http://nds.coi.gov.uk/Templates/NDS/images/favicon.ico.
Questions 31 and 32 of the original consultation document had raised the question of what could be done about Respondents or their representatives using the threat of costs sanctions against (mostly) unrepresented Claimants as a means of putting “undue pressure” on them to withdraw. The Response indicates somewhat helplessly that although there were many anecdotal examples provided of “aggressive litigation behaviour”, there was little consensus over what could or should be done about it.
Paragraph 80 therefore indicates that the Fundamental Review of the Rules of Procedure for Employment Tribunals, due to report in April this year, will consider “the powers that should be available to an Employment Judge …. in circumstances where a party seeks to apply undue pressure on the other during party-to-party negotiations/communications, where it is judged that improper threats are being made”.
It is strongly tempting to think that this line of enquiry represents another blind alley in the heart of Reform City. Encouraging the parties to proceedings play nicely together is one thing, but the potential for satellite litigation around the exercise of such powers is clearly vast. What are “improper threats”? What is “undue pressure”? Does it have to be criminal in nature (extortion or blackmail)? Is the question of “undue” in the mind of the Claimant or an objective test applied by the Employment Tribunal? And if it is objective, why does it matter whether the Claimant is professionally represented or not? If the pressure is in the course of without prejudice negotiations, why would the Employment Tribunal ever come to hear of it, unless the intention were to create in essence a new Tribunal claim of “inappropriate tone”. Surely not, especially as part of a consultation designed expressly to save the Employment Tribunal time and money and in a field where union and legal representatives often seem unable to write even a postcard without threatening proceedings if no reply is received in seven days.
If we exclude the traditional litigation tactic of putting one’s opponent between a rock and a hard place, where do you cross the line from exerting pressure to settle into undue pressure? Pointing out the possible downsides to the other party of its proceeding (time, cost, adverse PR, etc.) must surely be legitimate. Threatening the possibility of a costs claim, the particular topic of paragraph 80, will also have its place in circumstances where there is even an arguable case that the other party has behaved or conducted his claim in a way triggering the Employment Tribunal’s cost jurisdiction. We have to bear in mind also, with no disrespect to them, that unrepresented Claimants can cost the employer more than those who are represented, and that his or her case (or conduct of it) could well be less reasonable than that of somebody professionally advised.
In our view it would be quite wrong to reach the situation where employers were unable to explain truthfully but robustly to unrepresented litigants the possible consequences of their actions without fear of some retaliatory allegation being made which leads to even more Tribunal time and cost and an even higher degree of emotion between the parties.
