Navigating the Employment Tribunal as a Litigant in Person

If you are facing legal proceedings in the Employment Tribunal (ET) without professional representation, you are known as a Litigant in Person (LIP). While employment tribunals were initially designed to be speedy, informal, and inexpensive, the process has become more formal and legalistic, often dealing with complex legal issues.

If you choose to act on your own behalf or use a non-authorised lay representative, understanding the legal landscape and the specific challenges faced by LIPs is essential.

Understanding the LIP Landscape

The term "Litigant in Person" is generally recognised as the appropriate term in the employment tribunal. It applies whether you are an individual or a company, and even if you have taken some legal advice but do not have a representative on record.

The Challenges You May Face

LIPs often encounter specific difficulties that can affect the litigation process:

Pleadings and Structure

Your initial claim (ET1) may lack the clarity and structure of formal legal pleadings, potentially making the response process more costly and drawn-out for the opposing party. If your ET1 is confused and does not clearly identify the claim, the tribunal could reject it.

Procedural Knowledge

You may be unfamiliar with the specialist vocabulary, procedures, and rules of legal proceedings, even if you read up on them.

Evidence and Advocacy

You may find it challenging to apply the rules, present evidence effectively, or undertake cross-examination of witnesses. Cross-examination by LIPs can often take significantly longer due to a lack of focus.

Objectivity

You may lack objectivity and emotional distance from your case, which can complicate strategic decision-making.

Correspondence

You might engage in more extensive, detailed, and often unstructured pre-hearing correspondence, which can be frustrating for the opposing party.

Compliance

You may fail to comply with tribunal orders entirely or on time, potentially because you do not understand the order, its importance, or how to source the required information within the given timescale.

Key Legal Principles and Case Law You Should Know

While you are not expected to be a lawyer, the tribunal and the opposing party’s representatives operate within specific rules concerning LIPs.

1. The Tribunal’s Duty to Assist (Overriding Objective)

The Employment Tribunal (ET) has a duty to manage cases fairly and justly, which includes, so far as practicable, ensuring that the parties are on an equal footing. The ET is required to provide some assistance to redress the balance against an inexperienced LIP.

Scope of Assistance

The level of assistance is not subject to rigid rules and depends on the specific circumstances of the case, including your apparent level of competence and understanding. The tribunal must ensure you understand what is going on and what is expected of you at all stages.

Adversarial Limit (McNicol)

Proceedings remain adversarial, not inquisitorial. The tribunal is not required to obtain evidence for you or ensure you have adequate medical evidence. If you proceed without adequate evidence on a key issue, the tribunal will not rectify that inadequacy.

Identifying the Case (Mathebula and Fong)

Tribunals should avoid a "technical construction" of the claim form. In some instances, tribunals have erred by failing to identify an appropriate claim, even where the LIP pleaded facts that "shouted out" a different legal argument. Tribunals should adopt a proactive approach in case management and should not expect LIPs to identify the correct legal causes of action themselves.

Challenging the Tribunal

The tribunal has a wide margin of appreciation in deciding the level of assistance. An appeal to the Employment Appeal Tribunal (EAT) on the basis that the tribunal gave too much or too little help will only succeed if the tribunal's decision was one that no reasonable tribunal would have made.

2. Strike-Outs and Deposit Orders

If your arguments are deemed weak or your conduct is unreasonable, the opposing party may apply to the tribunal for sanctions:

Deposit Orders

The tribunal may order you to pay a deposit (up to £1,000 per argument) as a condition of pursuing specific allegations if they are found to have "little reasonable prospect of success". The tribunal must inquire into your ability to pay this deposit.

Strike-Out

The tribunal has the power to strike out your claim if, for example, it has no reasonable prospects of success (a high threshold, usually reserved for the "plainest and most obvious cases" in discrimination claims) or if you fail to comply with an unless order.

Conduct

Suppose the manner in which you conduct the proceedings is found to be scandalous, unreasonable, or vexatious. In that case, your claim may be struck out, especially if a fair trial is no longer possible.

3. Professional Conduct and the Opposing Solicitor

The solicitor representing the employer does not owe you a duty of care. However, their professional duties and the requirement to further the overriding objective mean they must comply with specific rules:

Unfair Advantage

The solicitor must not take unfair advantage of your lack of legal knowledge. This includes avoiding bullying, unjustifiable threats, or demanding what cannot properly be claimed. They should adopt a professional, cooperative, and courteous approach.

Plain English

All correspondence with you should be clear, avoid technical language or legal jargon, and explain jargon where it cannot be avoided.

Costs Warnings (Growcott)

If the opposing party issues a costs warning, it must be drafted in accurate, straightforward, and simple terms. The EAT has considered that a clearly worded costs warning, understandable to a lay person, contributed to a finding that the LIP acted unreasonably in continuing the claim, justifying a costs award.

We Can Help You Prepare for Your Tribunal

We understand that preparing for an Employment Tribunal as an LIP is daunting. We can assist you by providing structured documentation to help you present your case clearly and professionally.

We have legal templates to help you with critical stages of the tribunal process, including:

Drafting the ET3 Response

If you are a respondent, we can provide standard wording and guidance on how to complete the Grounds of Resistance (Box 6), ensuring you address every allegation and set out your defence in sufficient detail to show it has reasonable prospects of success.

Applying for Extensions

If you miss the 28-day deadline for submitting your ET3, you will be rejected unless you apply for an extension of time. We have a Standard Document, the Application for Extension of Time to Submit ET3 to the Employment Tribunal, to help you make this application in writing, copied to the opponent, and setting out the reason for the delay, as required by Rule 21(1) and (2).

Advice on Procedure

We provide guidance to help you focus your claims, understand case management orders, and avoid conduct issues that could lead to strike-out or costs awards.

Using structured legal documents can help you ensure that your arguments are properly framed, reducing the risk of procedural rejection and improving the clarity of your case before the tribunal.