We’ve won, we’ve won! ..... 6 waspish reasons why you might just be kidding yourself

It feels good to win. Even victory in an egg-and-spoon-race can bring a flush to the cheeks (or so I’m told….). Lashings of ginger beer all round!

In Employment Tribunal cases, the moment when victory is confirmed is usually less dramatic: the tantalising opening of a reserved judgment in an attachment to an email; a quick scan down to the result; and OH ….!, don’t it just feel sww-ee-eet?

However, like many sweet, summery things, it has a tendency to attract wasps. Sorry to spoil the party:

Legal costs

• These are not usually recoverable in the Employment Tribunal. They can often wipe out or exceed the amount awarded or successfully defended.

Publicity

• The press often report Tribunal hearings on a daily basis, long before the result is known.

• The juicier controversial titbits that stick in the minds of the public may well be seriously damaging to you, the supposed “winner”. That damage has already been done and won’t be undone by the result.

Judicial criticism

• “Winning” parties (and their witnesses) are not immune from being severely stung by judicial criticism in Employment Tribunal judgments.

• Judgments are public documents, freely available and searchable online (including to the press, other employees/employee representatives, prospective recruits, and prospective employers).

Opportunity costs

• For employees, relentlessly focussing on “winning” the case often means that future career and development opportunities have been neglected and lost forever.

• For employers, the need to painstakingly sift, collate, manage and present the evidence to defend the case can end up like a black hole of management time, sucking more and more people into its vortex.

• Those people could and should have been taking opportunities to do what their organisation does best, rather than poring through endless chains of old emails and hazily trying to recall the details of long gone conversations. Those opportunities may never return.

Broken relationships

• Tribunal cases often leave a bitter legacy.

• Win or lose, employees will very often stay in the same sector. Sometimes (for example in some discrimination cases) they remain with the same employer.

• Let’s just say that memories linger (sometimes fester) and that what goes around can come around to sting you, the supposed “winner”, painfully on the backside.

Health

• Litigation is often (accurately, in my view) described as psychological warfare. As in any war, there are casualties on both sides (including so-called collateral damage to innocent parties);

• The mental health of claimants may, in some cases, already be fragile as a result of the events leading up to the claim. Winning the case may come at the cost of lasting problems;

• Likewise, employers should not underestimate the mental strain on employees being expected to give evidence in an adversarial public forum, particularly against a colleague or former colleague.

Those wasps sure do have stings in their tails. So, next time you’re trying to assess the likelihood of winning, think also about the price of “success”.

Photo: Alvesgaspar, CC BY-SA 3.0 <https://creativecommons.org/licenses/by-sa/3.0>, via Wikimedia Commons