Employment Tribunals and Systemic Barriers for Litigants in Person (LiPs): A Case for Reform

Introduction

Employment tribunals in the UK were originally envisioned as informal, accessible forums where workers and employers could resolve disputes without legalistic barriers.¹ In practice, however, litigants in person (LiPs) – individuals representing themselves without a lawyer – face significant disadvantages. The procedural framework and culture of tribunals often favour parties with legal representation, leading to an imbalance in outcomes. This paper analyses the systemic barriers and potential judicial bias confronting LiPs in employment tribunals, examines the need for stronger whistleblower protections (including a proposed Office of the Whistleblower), exposes common “ambush” tactics used by opposing counsel against unrepresented claimants, and recommends reforms to promote fairness. The analysis draws on tribunal statistics, case law, academic commentary, and practitioner insights to highlight how current structures impede access to justice for LiPs and how targeted changes could level the playing field.

1. Systemic Barriers and Judicial Bias

Employment tribunal rules and procedures – though less formal than those of higher courts – still tend to mirror adversarial litigation, which inherently advantages represented parties. Tribunals were intended to provide “an easily accessible, speedy, informal and inexpensive procedure” for claimants and to be usable by those without lawyers.² In reality, “procedural and substantive legal points may be confusing or hard to grasp for an unrepresented litigant,”³ and many LiPs find the process “closed and off-putting,” with formal language and fixed procedures – effectively requiring even an unrepresented claimant to mimic the mannerisms of a barrister.⁴

1.1 Inequality of Arms

One fundamental barrier is the disparity in legal representation between employees and employers. Employers almost always enter the tribunal armed with solicitors or counsel, whereas a large share of claimants appear alone. Government surveys indicate that in recent years 77% of employers had legal representation at the hearing, compared to only 41% of claimants.⁵ Overall, roughly one-third of claimants go unrepresented,¹ usually because they cannot afford a lawyer or cannot obtain alternative support. Tribunal outcomes skew in favour of those with representation: only 17% of claims reach a full hearing, and unrepresented claimants were more likely to lose than win, whereas having representation “unsurprisingly” made success more likely.⁵

An academic analysis of 2015–2018 whistleblowing cases found that the single biggest predictor of success was the relative degree of legal representation – whistleblowers with parity of representation won far more often, while LiPs fared worst.⁶ Likewise, research by the whistleblowing charity Protect found that whereas about 53% of represented whistleblowers’ claims failed, a striking 68% of self-represented whistleblowers’ claims failed.⁷ These figures underscore an “inequality of arms” – the rules may be the same for each side, but one side has the expertise to use them effectively.

1.2 Procedural Complexities

LiPs face procedural complexities that can trip up even legally trained individuals. Strict time limits are one example: unfair dismissal or discrimination claims must be filed within three months,⁸ a deadline that “even [those] with a first-class law degree” have nearly missed when unrepresented.⁶ Self-represented workers often struggle to articulate the legal basis of their claim or to identify the correct cause of action. In Mervyn v BW Controls Ltd [2020]EWCACiv774[2020] EWCA Civ 774[2020]EWCACiv774, the claimant wrongly pursued an unfair dismissal claim (not realising it should have been constructive dismissal); the Court of Appeal noted judges should intervene in such situations to help unrepresented parties frame the right claim.⁹ Similarly, in Moustache v Chelsea & Westminster NHS Foundation Trust (unreported, EAT, 2023), the LiP’s claim was not fully addressed at first instance because the agreed list of issues omitted a key allegation. The EAT allowed the appeal and reminded tribunals of their duty to “level the playing field” for LiPs, cautioning against a slavish reliance on technical pleading where a claimant lacks legal advice.¹⁰ These cases illustrate that without judicial assistance, LiPs can lose meritorious claims on technicalities.

Yet tribunals must tread carefully: they are not fully inquisitorial bodies and cannot depart entirely from their neutral role as “umpire.”¹¹ The balance is delicate – judges should clarify issues and ensure LiPs’ cases are understood, but many LiPs still report feeling that judges hold them to the same procedural standards as lawyers, sometimes to their detriment.

1.3 Implicit Judicial Bias

There is evidence of implicit judicial bias or system prejudice against LiPs, or at least a lack of accommodation for their position. Some tribunal judges, conscious of maintaining neutrality, hesitate to assist an unrepresented claimant for fear of appearing biased – yet failing to intervene can itself lead to unfairness. The Equal Treatment Bench Book urges judges to adapt proceedings for LiPs, but in practice experiences vary.¹²

In one striking example, an unrepresented claimant (pseudonym “Alan”) who brought an unfair dismissal and whistleblowing claim described being “grilled by the employer’s KC [King’s Counsel] for a day-and-a-half” and then expected to cross-examine the employer’s witnesses himself.⁶ Alan ultimately lost his case, and the tribunal ordered him to pay £10,000 towards the employer’s legal costs – a highly unusual order (since costs are rarely awarded in tribunals) that was justified on the basis that he had acted unreasonably by not heeding the employer’s solicitors’ warning to abandon his “weak” claim.⁶ To the LiP, this felt like being penalised for self-representation – “as a litigant-in-person, you might have a good case, but if you haven’t put it together right then you don’t.”⁶ Such outcomes create a perception of bias: that tribunals expect claimants to get legal help and will punish those who fumble without it. Campaigners note that ostensibly neutral procedures can “amplify inequity, signalling to employers that it is possible to break the law and still win the legal argument” against a self-represented worker.⁶

Other structural features of the tribunal system further disadvantage LiPs. Until recently most hearings had no official transcript or audio recording; the record relied on the judge’s handwritten notes. This “old-school” practice favours the side with resources to hire a private note-taker (typically the employer), and makes it perilous for a LiP to appeal or complain about conduct since there is no verbatim record.⁶ Likewise, the abolition of nearly all legal aid for employment cases in 2013 (save some discrimination claims) removed a safety net that previously helped level the field.⁶ The cumulative effect is that a process meant to be “user-friendly” has become multi-year, intensive litigation requiring as much preparation as a county court case.⁶ Instances of judges stepping in to assist (as higher courts have urged) do occur, but inconsistency and occasional harsh outcomes have fuelled criticism that LiPs do not receive equal justice.

2. The Role of the Office of the Whistleblower

Whistleblowing claims exemplify the difficulties faced by LiPs and the shortcomings of current protections. The UK’s primary whistleblower law, the Public Interest Disclosure Act 1998 (PIDA), is embedded in employment law – meaning whistleblowers who suffer retaliation (dismissal or other detriment) must bring a claim to the employment tribunal. This framework has been widely critiqued as inadequate.

2.1 Low Success Rates and Limited Support

Current deficiencies in UK whistleblower protections include extremely low success rates for claimants, lack of proactive investigation of the reported wrongdoing, and limited support for individuals who risk their careers to speak up. Tribunal statistics are stark: according to multiple analyses, the success rate of whistleblowers’ claims in tribunal is only on the order of 3–12%.⁷ ¹³ In either case, over nine in ten whistleblowers lose, meaning the law fails to provide redress in the vast majority of cases. By comparison, most other employment claims also have low success rates, but whistleblowing is at the bottom.⁷ Moreover, many cases never reach a full hearing: nearly one-third of PIDA claims settle early via ACAS conciliation, often with confidentiality attached, meaning serious issues are swept under the rug.⁷

Many whistleblowers cannot afford legal representation and end up self-representing (Protect found 40% of PIDA claimants were LiPs), and these were disproportionately the ones who lost.⁷ PIDA claims are complex, requiring the claimant to prove that they made a qualifying protected disclosure, that it was in the public interest, and that this causally led to their mistreatment. The burden of proof effectively rests on the individual, and no government body steps in to investigate the underlying wrongdoing or to enforce protections.¹⁴ Thus, even if a tribunal finds that a worker did make disclosures about, say, safety breaches or financial impropriety, the tribunal’s role is not to probe those issues further; it only adjudicates whether the employer retaliated unlawfully.

2.2 Proposal for an Independent Office

To address these failings, policymakers and advocates have proposed creating an independent Office of the Whistleblower. The idea is to establish a dedicated body that would champion whistleblowers’ rights and oversee whistleblowing disclosures outside the current tribunal-only route. Such an Office could protect whistleblowers, investigate their concerns, and enforce anti-retaliation measures.¹⁵ It would fill the gap left by PIDA’s narrow focus by ensuring that when someone blows the whistle, their information goes to the proper authorities to be acted upon, and the individual is safeguarded in the meantime.

An Office of the Whistleblower in the UK, backed by statute, could similarly bolster trust in whistleblowing by making it safer and more effective to come forward. Indeed, recent parliamentary proposals (The Whistleblowing Bill 2023–24) seek to establish such an Office with powers to “set, monitor and enforce standards for the treatment of whistleblowers” and to impose penalties on organisations that mistreat them.¹⁶ By taking whistleblowing out of the sole realm of individual litigation, the Office could help level the playing field – ensuring that whistleblowers no longer face their employers one-on-one in tribunals as the only path to justice.

Comparative examples show that dedicated whistleblower authorities can transform outcomes: in the United States, for instance, the Securities and Exchange Commission (SEC) Office of the Whistleblower both protects whistleblowers and offers monetary rewards.¹⁷ Other countries, such as Ireland and the Netherlands, have also established independent agencies to receive and investigate whistleblowers’ reports, sometimes providing psychosocial support and safeguarding the whistleblower’s career while investigations proceed.¹⁸

3. Dirty Tactics of Opposing Counsel

In addition to structural hurdles, litigants in person frequently endure “dirty tactics” or sharp practices by opposing counsel (typically representing the employer). These tactics exploit LiPs’ lack of legal knowledge and the tribunal’s procedural flexibility, often overwhelming or ambushing the unrepresented party.

3.1 Early Procedural Ambush (Strike-Outs and Deposit Orders)

It is not unusual for respondents’ solicitors to immediately bombard a LiP with technical applications aimed at disposing of the claim or forcing the claimant’s hand. Employers often apply at an early stage to strike out the claim for having no reasonable prospect of success or being out of time. While many strike-out applications fail (tribunals tend to prefer hearing evidence at trial), the tactic serves to intimidate. Respondents also frequently request deposit orders – requiring the claimant to pay a sum (up to £1,000 per allegation) to continue a claim deemed to have low prospects.¹⁹ Such measures can pressure a LiP to abandon the case.

3.2 Excessive or Last-Minute Disclosure

Another tactic is the “document dump,” in which the LiP is served with an enormous bundle of documents, witness statements, or case law authorities shortly before the hearing. A represented party’s legal team can marshal hundreds of pages, which a LiP may struggle to digest or rebut in the limited time available. Tribunals do have case management powers to refuse late evidence or grant adjournments, but LiPs often do not know their rights or fail to object in time.²⁰ Even when disclosure is timely, a LiP may be disadvantaged by the way bundles are indexed or presented.²⁰

3.3 Deliberate Delays and Attrition

Procedural delay can itself be a weapon. Given the backlog and slowness of employment tribunals, a resourceful respondent can drag out proceedings to wear a claimant down. This may involve filing late responses, resisting disclosure requests, or repeatedly seeking adjournments.²⁰ Each postponement increases the stress and financial strain on a LiP, who may be unemployed and relying on the tribunal outcome to move on.

3.4 Intimidation and Costs Threats

Although costs awards are uncommon in employment tribunals, employers’ solicitors sometimes issue letters threatening large costs orders unless the LiP withdraws the claim. Protect’s experience is that respondents “use costs warnings as an aggressive tool” to pressure whistleblowers into withdrawing or settling early.⁷ Many LiPs, unfamiliar with the tribunal’s cost rules, take these threats at face value. As noted in Alan’s case, large costs orders can be a reality if a judge deems the LiP’s pursuit of a claim to have been unreasonable.⁶

3.5 Aggressive Cross-Examination and Legal Jargon

The hearing itself can be daunting for a LiP. Opposing counsel may rigorously cross-examine the claimant to rattle them, while the LiP, unfamiliar with court procedure, struggles to cross-examine the employer’s witnesses effectively. Counsel might also cite extensive legal authorities or use technical jargon, leaving a LiP unable to respond on points of law. Judges do try to help by explaining legal points in plain language, but the complexity can be overwhelming for someone lacking legal training.⁶

4. Policy Recommendations

To improve fairness for litigants in person and curb abuses, a range of reforms – both procedural and structural – should be considered. These recommendations aim to level the playing field in employment tribunals and ensure that lack of representation does not equate to lack of justice.

4.1 Strengthen Judicial Case Management and Support for LiPs

Tribunals should actively implement guidance to assist unrepresented parties from start to finish. This could include requiring a preliminary hearing (or early case management hearing) in every LiP case where the judge and parties go through the claim to identify the issues in plain language. Judges should be empowered (and trained) to intervene to clarify claims and defences – for example, helping a claimant refine the legal basis of a claim⁹ or ensuring a LiP has not inadvertently omitted a claim due to ignorance.¹⁰ While maintaining impartiality, judges can ask clarifying questions to bring out the essence of a LiP’s case. The Equal Treatment Bench Book and tribunal Presidents’ guidance should be updated with best practices on handling LiPs, emphasising that the goal is a fair hearing, not a procedural trap.

4.2 Simplify Tribunal Procedures and Forms

The procedural rules could be revisited to reduce complexity that hampers LiPs. For instance, the Employment Tribunal claim form (ET1) could be redesigned in a more user-friendly way, prompting claimants in lay terms to explain their complaint and key facts. The rules on pleadings might be relaxed when a party is unrepresented – tribunals could be instructed not to strike out a claim for mere pleading defects without first giving the LiP an opportunity to re-frame it with guidance.²⁰ Introducing template documents (e.g. a template witness statement) for LiPs to fill in would ensure they provide necessary information without needing legal drafting skills.

4.3 Curb “Ambush” Tactics Through Stricter Case Management

To prevent sharp practice by represented parties, tribunals should enforce tighter controls on evidence and timing. A more proactive case management ethos would discourage parties from trying to game the system. For example, a “chess clock” approach could require both sides to disclose documents and witness statements by a well-defined date, barring the introduction of late evidence except in truly exceptional circumstances.²⁰ The use of strike-out and deposit applications should also be monitored; these serve a purpose in weeding out hopeless cases but can be abused as intimidation tactics.

4.4 Enhance Access to Legal Advice and Representation

One of the most effective ways to level the field is to ensure more workers have access to legal assistance. This could involve reinstating legal aid for employment cases, at least for specific types of claims (whistleblowing, discrimination, etc.) which are complex and carry public interest. Making whistleblowing claims eligible for legal aid (similar to discrimination) is a proposal already put forward in Parliament.⁷ Targeted funding schemes and expanded pro bono services (e.g. law centres, the Free Representation Unit) could also ease the disadvantage of self-representation.

4.5 Establish the Office of the Whistleblower and Strengthen Whistleblower Laws

As discussed, whistleblowing claims suffer some of the worst outcomes for LiPs, given their complexity and the power dynamics involved. A key recommendation is to enact the Office of the Whistleblower as proposed in current bills,¹⁶ so that a dedicated agency could not only assist whistleblowers in reporting and obtaining redress but also actively oversee how cases are handled. Legislative reform should broaden the coverage of PIDA or replace it with a new Whistleblowing Act that provides interim relief more readily and imposes direct duties on employers and regulators to investigate disclosures. Introducing whistleblower rewards, as in the US SEC model,¹⁷ might further incentivise individuals to come forward.

4.6 Promote Alternative Dispute Resolution (ADR) and Early Intervention

Another avenue to relieve pressure on LiPs is to resolve disputes before they escalate to a tribunal hearing. Mandatory ACAS Early Conciliation is already a step in this direction, but its effectiveness for LiPs could be improved. Providing ACAS conciliators with more latitude or training to identify power imbalances and facilitate fair settlements could help. Beyond ACAS, introducing a mediation scheme within the tribunal process could be beneficial – if one side is unrepresented, the mediator can ensure they understand the implications of any settlement offers. Early neutral evaluation by a tribunal judge at a preliminary stage might also encourage settlement or help a LiP focus on the key legal points.

In implementing these recommendations, it is important to consult with all stakeholders: judges, lawyers, employers, unions, and LiP advocacy groups. The objective is not to advantage claimants over respondents but to ensure that unrepresented parties can assert their rights on genuinely equal footing.

Conclusion

UK employment tribunals are at a crossroads between their founding ideal of informal, claimant-friendly justice and the reality of increasingly complex, lawyer-driven litigation. Litigants in person, who make up a substantial portion of tribunal users, often find themselves outgunned by employers armed with legal counsel, navigating a procedural maze that was ostensibly designed for laypeople but in practice demands legal savvy. Evidence of systemic bias – from skewed success rates to cases where LiPs are penalised for procedural missteps – indicates that the promise of “equal footing” is not being fully met. The situation is especially acute for whistleblowers, whose complex claims and public-interest dimension are poorly served by a purely adversarial system.

Yet the insights from case law, research, and advocacy also point the way forward. By introducing an Office of the Whistleblower, improving judicial case management for LiPs, simplifying tribunal procedures, and expanding access to legal assistance, the system can be recalibrated toward fairness. These changes would not only benefit LiPs but also enhance the integrity and efficiency of the tribunal process overall – ensuring that outcomes turn on the merits of cases rather than on the mismatch in representation or tactical manoeuvres. In sum, an employment tribunal system that actively mitigates power imbalances and provides reasonable support to those without lawyers will better uphold the fundamental principle of justice: that every person, regardless of means, has a fair chance to be heard and to vindicate their rights.

Footnotes

1. House of Commons Library, Legal advice and help in employment matters, Briefing Paper (9 December 2024) 1 (citing David Renton, Struck Out: Why Employment Tribunals Fail Workers (Pluto Press 2012)).
2. Ibid; see also Employment Tribunal Rules 2013 (SI 2013/1237).
3. Equality and Human Rights Commission, Litigants in Person in Tribunals (Research, 2018) 5.
4. ibid; David Renton, Struck Out: Why Employment Tribunals Fail Workers (Pluto Press 2012) ch 2.
5. Department for Business, Survey of Employment Tribunal Applications 2018 – in Neil Rose, ‘Fewer than half of employment tribunal claimants use lawyers’ (Legal Futures, 13 July 2020) https://www.legalfutures.co.uk accessed 12 January 2025.
6. Alicia Clegg, ‘“The Power Imbalance is Enormous”: Inside the Ordeal of Employment Tribunals’ (Byline Times, 16 Nov 2023) paras 4–12 https://bylinetimes.com accessed 12 January 2025 (Byline Times).
7. Protect, ‘Why Legal Aid for Whistleblowers is Needed Now’ (Protect blog, Dec 2019) https://protect-advice.org.uk accessed 12 January 2025 (Protect).
8. Employment Tribunal Rules 2013 (SI 2013/1237) r 3 (limitation for bringing claims).
9. Mervyn v BW Controls Ltd [2020] EWCA Civ 774 [25] (Mervyn).
10. Moustache v Chelsea & Westminster NHS Foundation Trust (EAT, 2023, unreported) cited in Didlaw blog (Jack Dooley, 2023) https://didlaw.com accessed 12 January 2025.
11. See e.g. HM Courts & Tribunals Service, Equal Treatment Bench Book (2022 edn) pt 3.
12. ibid; see also S Pepper-Parsons (Protect) commentary in Byline Times (n 6).
13. All-Party Parliamentary Group on Whistleblowing, Making Whistleblowing Work for Society (University of Greenwich, 2020) 5–6.
14. WilmerHale UK, ‘Rewarding Whistleblowers… Wider Package of Reforms’ (8 Aug 2024) https://www.wilmerhale.com accessed 12 January 2025.
15. WhistleblowersUK, ‘The Whistleblowing Bill Report’ (2023) https://wbuk.org accessed 12 January 2025.
16. Bills before Parliament, The Whistleblowing Bill 2023–24 https://bills.parliament.uk accessed 12 January 2025; see also HR-Inform https://hr-inform.co.uk and Moorepay https://moorepay.co.uk.
17. Blogs.Law.Ox.ac.uk (various posts on whistleblower reward schemes); see also US Securities and Exchange Commission, ‘Office of the Whistleblower’ https://www.sec.gov accessed 12 January 2025.
18. Huis voor Klokkenluiders (House for Whistleblowers) https://www.huisvoorklokkenluiders.nl accessed 12 January 2025 (describing Dutch whistleblower authority).
19. Valla, ‘Strike out, unless order, and deposit order – differences in a Tribunal’ (Guide, Feb 2023) https://valla.uk accessed 12 January 2025.
20. Field Court Chambers, ‘Striking out… impact of recent case law’ (Ryan Anderson, 2021) https://fieldcourt.co.uk accessed 12 January 2025.