A growing number of litigants have no choice but to represent themselves in the employment tribunal. It is almost always the claimant who is unrepresented, while the employer benefits from legal representation. Larger employers often arrive with a solicitor and a barrister.
It is, in theory, possible to represent yourself in an employment tribunal without suffering a disadvantage. The tribunal judge is supposed to take reasonable steps to address the imbalance between the two sides. However in practice there are very definite limits to the assistance on offer from the tribunal judge, and in practice, litigants in person are often left significantly worse off than their represented opponents.
If you suffer from mental ill-health that seriously impairs your ability to represent yourself and you are unable to afford representation, the tribunal is likely to suggest that you apply for representation through the voluntary bar Pro Bono unit. You will normally need evidence, such as a medical report or evidence of any medical treatment, to show the tribunal that you cannot represent yourself properly due to your mental health condition.
For all litigants, it is much better to be represented, by someone with experience of the tribunal process. You don’t necessarily need representation by a solicitor or barrister (the substantial costs of which cannot usually be recovered from the other side). Full-time union officers are very experienced in taking cases to tribunals.
Employment tribunal hearings are open to the public and it is a good idea to sit in and listen to someone else’s claim being heard while preparing for your own, to give you a better idea of what to expect – even if you are going to be represented.
Although costs awards (orders that a litigant pay some or all of the costs of their opponent) are still quite rare in the employment tribunal, there is evidence that they are on the rise.