Donna Patterson’s employment tribunal win – without any legal representation – against supermarket giant Morrisons for unfair dismissal and sex discrimination has upped the ante for employees wanting to fight their own corner.
Morrisons was ordered to pay £60,442.25 to Patterson after she had her role changed from part time to full time while on maternity leave. According to charity Pregnant Then Screwed, which helped Patterson win her case, she was unable to afford the costly legal fees and decided to self-represent.
Patterson told People Management that self-representation wasn’t her “first option” but it was “a case of all my other options disappearing”, she explains. “I got a really good tip from Pregnant Then Screwed about checking with my home insurance if I had legal protection, and I thought at the beginning of this process that it would cover all of my costs.
“If I had realised from day one that I had to self-represent I’m not sure if I would have done it, but that’s hard to know for certain. I had put all of my hopes on the legal protection insurance working out, and when I found out they weren’t going to protect me I began contacting other solicitors, but they were too expensive.”
Patterson – who has been dubbed the ‘Erin Brockovich of Bradford’ for her win – adds that she didn’t know how many hours it would take for a solicitor to run her case, but she had no other choice but to go it alone because she wanted to “make Morrisons aware that what they did was wrong”.
Indeed, it would seem Patterson has inspired others, as Joeli Brearley, founder of Pregnant Then Screwed, confirms that the charity has seen a “surge in calls” from women who are looking to take their case to a tribunal. Brearley says: “Donna has shown mothers that it's possible to take on the giants even without any professional legal expertise. That's incredibly powerful.”
Sarah Williams, head of employment at Taylors Solicitors, points out that this is not a new phenomenon, as “it is actually very common for employees to pursue claims on their own behalf as a ‘litigant in person’ in an employment tribunal”. She adds that legal representation can be expensive, but “many people pursue employment tribunal claims with the support of a solicitor under a no-win, no-fee agreement”.
So People Management asked the experts what would happen if employees increasingly self-represented themselves at tribunal, and whether this will become more commonplace during the economic downturn.
Employer awareness on external support
“Employers should be in no doubt that there are plenty of organisations and charities that provide free support,” says Williams, adding that “employment tribunal judges must ensure that a litigant in person is not placed at a disadvantage if they decide to go it alone”.
When it comes to charities, other organisations that offer support would have to assess the case on its merits, says Alan Lewis, partner at Constantine Law, because otherwise “organisations would waste funding, which is already in short supply”. He warns there could be “an increase in the number of claims in that situation, especially as the UK enters recession and there will inevitably be more dismissals and challenges made to the fairness of redundancy dismissals”.
Antonio Fletcher, head of employment at Whitehead Monckton, says tribunals were “originally intended” to be less formal settings than courts, at which parties could represent themselves. “Trade unions and other organisations have over the years provided support to individuals bringing claims; equally the number of individuals who represent themselves is also likely to be higher than in court proceedings,” he says.
Keely Rushmore, employment partner at Keystone Law, says businesses facing claims from litigants in person could find themselves out of pocket. “Employers [facing these types of claims] will generally find that their costs increase given that the burden of preparation for the hearing will largely fall on to them, and the claim may be less structured and precise,” she explains.
Legal fees vs the economy
Rushmore says there is an “increasing trend of claimants securing funds from charities or other means, such as crowdfunding”. She adds: “With the pressure of the cost of living, and employment tribunals offering a potentially low-cost and low-risk way of bringing a claim, employers may well find that they are facing an increased number of employment tribunal claims.”
With employees and businesses watching their finances closely, a tribunal isn’t an ideal outcome for either party. But according to Fletcher, the cost of living crisis could not only see more tribunal claims being brought, it could also see more employees try to cut down their legal fees. “It is likely that the current economic climate will see more claims brought in general, particularly if it becomes more difficult for individuals to find new employment once their employment ends,” says Fletcher. “Such claims are likely to include a relatively significant amount of claims from individuals who represent themselves where they lack a clear means of funding representation.”
Alan Lewis says people in a similar situation to Patterson, with no legal expense insurance cover – often an add-on to home buildings and contents insurance – the choice will be to “go it alone or make no claim at all”. He adds: “Those who want to follow Patterson’s lead, should note that it will be tough going.
“Patterson herself, having to face a three-person tribunal panel and a respondent who was represented by a barrister, said in her interview with BBC Radio 4: ‘It was gruelling; it was exhausting. I was up very late at night preparing, going through documents, and even during the hearing each day I would go home each evening and I would be drained. I had nothing left in me.’”
The risks for employees going it alone
Employees going it alone without proper advice could run into several pitfalls, says Lewis: “An employee with a genuine claim might fail to plead the case properly from the outset and might omit certain claims in their entirety, simply through lack of [legal] knowledge.” This would result in a failure to get compensation.
As Fletcher notes: “Employment law is one of the fastest-moving areas of law in terms of the changes that regularly take place. Keeping on top of those changes, as well as understanding the complex laws that have developed and expanded over time, can therefore be very challenging for those who do not specialise in the area.”
He also highlights that claims are currently taking “significantly longer”, which can make it “difficult” for individuals to successfully bring claims themselves.