Would Your Business be Ready to Deal with an Unrepresented Claimant?

If an employee decides to bring an employment tribunal claim against your business, they may choose to do it themselves rather than seek legal advice or representation. Whilst no lawyer on the other side may initially sound like a good thing (no professional scouring over what’s been happening, looking to find fault…), it can bring its own challenges and frustrations for businesses.

So, what are some of the key things you need to know when it comes to unrepresented claimants?

1. Do employees often ‘go it alone’?
2. What are some of the key challenges it can present for businesses?
3. What is one of the most important steps you can take to help your business?

1. Do employees often ‘go it alone’? 

It’s not that unusual for some employees to take this approach and there can be many reasons for it, including trying to save on the expense of legal advice/representation, feeling they are (rightly or wrongly) capable of doing it themselves or maybe they disagree with an advisor’s assessment of the merits of their case (e.g. there is no real basis for a successful claim). 

According to employment tribunal statistics, 31% of claimants in 2023/24 had no recorded representation, which means there were a fair number of businesses that found themselves dealing with an unrepresented claimant.  

2. What are some of the key challenges it can present for businesses? 

If the matter gets as far as an employment tribunal, unrepresented claimants can pose challenges on the day, but also from the outset of the claim. If employees don’t seek legal advice on their situation before deciding to bring a claim, in our experience, some of the key challenges businesses can find themselves facing are:

• Unfounded claims – often based on a general sense of the employee being wronged in some way, but not necessarily grounded in law. For example, an employee may understandably be upset or angry at being made redundant, but that doesn’t mean that the dismissal itself is unfair in a legal sense if there was a genuine redundancy situation, a fair process and a reasonable decision. 

Likewise, an employee may disagree with a decision, for example they may feel that their grievance should have been upheld (despite the evidence to the contrary), that they should have been treated ‘better’ in some way or given something such as a pay rise which they felt they deserved but had no legal entitlement to. Without legal advice, employees can sometimes try to bring claims where, on the facts of the situation, there is no legal basis for them or claims which are very unlikely to succeed but which nonetheless require time and effort on the part of the business to deal with / defend.

• Difficulty in identifying the claims – the law can be complicated and it can lead to employees having difficulty in correctly or fully identifying their claims without legal advice, this can make more work for businesses (and their representatives) and require additional time to deal with, for example by applying for further and better particulars of the claim.

• Unrealistic expectations – sometimes employees who have not obtained legal advice can have unrealistic expectations of the likelihood of their claim succeeding or of how much they may be awarded by the employment tribunal if they do win. One of the downsides of this for businesses is that it can make it harder to settle a claim (if this is what, in the circumstances, the business wants to do). If an employee is feeling confident in their case (whether this reflects reality or not!), it has become a ‘point of principle’ and/or the employee is envisioning compensation akin to a lottery win, reaching a settlement can be especially challenging. 

3. What is one of the most important steps you can take to help your business? 

Keep appropriate records – whether an employee who brings a claim seeks legal advice/representation or not, having the records you need to demonstrate you have acted appropriately will help your business to more robustly defend an employment tribunal claim.  

Appropriate record keeping may also help your business to stop a claim before it starts, e.g. a signed contract of employment, payslips and any applicable documentation/notes to show an employee they have been paid correctly, if a pay-related grievance has been received.  

If your business receives a complaint from an employee, for example, a grievance, please get in touch for specific advice on the matter. If your business receives an employment tribunal claim, it’s vital to contact us urgently. Please remember that under no circumstances should an employment tribunal claim be ignored. 

Have an HR matter you would like assistance with? Please get in touch.