A report from the whistleblowing charity Public Concern at Work has found that people making whistleblowing claims in the Employment Tribunal are significantly more likely to succeed with their claims if they have a lawyer representing them.
The report “Is the law protecting whistleblowers – a review of PIDA claims” reviewed Employment Tribunal judgments and statistics between 2011 and 2013, analysing 2,969 employment tribunal judgments.
The report stated that only 44% of claimants in whistleblowing cases had legal representation, with the remainder representing themselves or relying on a legally unqualified representative for help.
The report also found that there was a problem with access to justice in whistleblowing claims, with certain categories of workers (GP’s, foster carers, non-executive directors, and doctors, for example) unable to make claims against their employer under the relevant legislation. Further, claimants who instructed a lawyer to represent them in their claims were significantly more likely to be successful in their claim where they had legal representation – 44% of claimants who had legal representation won their claim, against 32% of self-represented litigants. The report highlighted that many litigants in person have difficulties in understanding the procedural aspects of the Employment Tribunal with system, with one litigant in person left feel “isolated” and “excluded” by the language used by the judge and lawyers.
As well as significant issues with access to justice, the report also found “a worrying increase in the number and size of costs ordered against claimants”, with costs totalling £753,135 being awarded against claimants who had brought whistleblowing claims, whereas costs awarded against respondents was much lower (at £183,992).
Public Concern at Work chief executive Cathy James commented on the report: “While the law is intended to level the playing field, this report shows the barriers to justice faced by whistleblowers when accessing the courts and demonstrates the “David and Goliath” battle often faced by whistleblower claimants.
“Unable to access legal aid and faced with the financial burden of paying for advice, representation and court fees mean that many individuals are effectively being priced out of justice.”
The charity also stated that there was an “urgent need” to review the employment tribunal costs regime.
Chris Hadrill, a specialist employment solicitor at Redmans, commented on the report: “This report shows that – far from being informal and litigant-friendly – Employment Tribunals pose formidable obstacles for those undertaking whistleblowing claims. Whistleblowers who want to take their case to court may wish to try and instruct a firm of solicitors on a no win no fee basis if they do wish to obtain expert legal representation, as this reduces the up-front cost burden of litigating for them.”