Archive for the ‘Employment Tribunal Procedure’ Category
By Liam - Friday, August 20th, 2010
This appeal to the EAT illustrates that having lost at Tribunal, the only way is not up for the losing Claimant. He may have thought things couldn’t get worse for him when he lost his Tribunal claim and he had nothing to lose by appealing, but this proved not to be the case.
The Claimant appealed to the EAT. As well as answering the appeal, the appeal prompted the Respondent to cross appeal about the Tribunal’s decision that the Claimant wasn’t required to repay fees under a training agreement’s repayment provision. The Claimant lost his appeal but the Respondent won its cross appeal. This left the Claimant not only still losing his claim, but having to repay £2,188 of training fees as well!
The same is true of internal appeals. A final written warning from a disciplinary hearing could turn in to a dismissal on appeal (although this is rare).
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By Olivia - Thursday, August 19th, 2010
The EAT in the case of Gloucestershire Constabulary v Mrs Peters and Mr Peters determined that the Tribunal had erred in refusing to stay a hearing in relation to disability where the day to day activities of the employee, a service police officer, were also the subject of a police fraud investigation.
The case of the Police was that the issue of disability could not be determined at the PHR until they had completed their investigations as the results of these investigations would be relevant to determining whether or not she was disabled.
An Employment Judge has, under Rule 10, a wide discretion in relation to making an Order that proceedings be stayed pending investigation results and usually the EAT are very reluctant to interfere in this discretion.
However, Bastick v James Lane (Turf Accountants) Ltd, sets out circumstances where the EAT can interfere with this discretion ‘…it was necessary to show either that he had improperly taken into account some matter, or that he had failed to take into account a relevant matter, or that his decisions was perverse.’
Judge Ansell, at the EAT, determined that the wide discretion in this case had been incorrectly exercised. He determined that there was a substantial overlap of issues and an early hearing has the potential to harm the continuing Police investigation. However, the Order made was for a limited stay until the investigation was completed (not until the conclusion of any criminal prosecution).
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By Liam - Wednesday, August 18th, 2010
In this case at the EAT, an employer had a narrow escape from not being allowed to defend an Employment Tribunal complaint against it because it sent an e-mail intending to present a Response (in time) but in fact presenting an unrelated document because the wrong file was attached to the e-mail.
The correct document was presented late. The Employment Tribunal refused to set aside the default judgment, but on appeal the EAT reversed this decision on the basis that the Tribunal failed to take in to account the fact that the employer had reasonable prospects of defending the complaint against him.
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By Sarah - Friday, August 13th, 2010
I came across this from a fellow blogger on our Law Society Gazette website which employers may find of interest…
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By Sarah - Thursday, August 5th, 2010
Employment Tribunal Claims soared by 56% in 2009/10 over 2008/9 figures according to statistics from the Tribunal Service. Actions brought by multiple claimants saw the biggest rise at 90% which had the largest impact on the total claims in the system. These are typically the sort of claims brought by unions such as multiple equal pay claims and the 10,600 claims brought by airline pilots relating to the Working Time Directive.
However claims from single claimants, still rose by 14% and unsuprisingly given the recession claims for redundancy pay almost doubled to 19,000. Unfair dismissal claims rose to 57,400 up 9% and breach of contract claims to 42,400 up 29%. Claims for all types of discrimination rose except sex discrimination where the claims fell slightly.
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By Olivia - Thursday, August 5th, 2010
What happens if an individual is not well enough to attend Tribunal? In the case of Mr J Asim v University Hospital Birmingham NHS Foundation Trust he failed to attend Tribunal on the day of the hearing and instead made an application for an adjournment because of lack of representation and on medical grounds. This was refused and his claim dismissed.
He appealed and produced, at the EAT, a doctor’s letter obtained after the refusal of an adjournment. This letter contained advice given by the doctor to Mr Asim the day before the hearing stating that, for medical reasons, he was unfit to represent himself.
The EAT applied Teinaz v London Borough of Wandsworth [2002] and determined that if the Tribunal had seen the doctor’s letter it would have granted the adjournment. In Teinaz, the Court of Appeal held:-
“A litigant whose presence is needed for the fair trial of a case but who is unable to be present through no fault of his own will usually have to be granted an adjournment however inconvenient it may be to the Tribunal or to other parties. That litigant’s right to a fair trial under article 6 of the European Convention on Human Rights demands nothing less, but the Tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine and the onus is on the applicant for an adjournment to prove the need for such an adjournment.”
In relation to the admission of fresh evidence (the doctor’s note) the EAT had regard for paragraph 8 of the EAT Practice Direction, Ladd v Marshall [1954] and the overriding objective and allowed consideration of the doctor’s note. The reasons for this were that it was found to be credible, relevant and would probably have had a determinative influence on the Tribunal.
This case has been remitted to Tribunal for full hearing.
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By Olivia - Tuesday, August 3rd, 2010
In what circumstances can employees bring claims in British courts when their employment is outside Great Britain? This issue was addressed by the EAT in the case of Ministry of Defence v Mrs Wallis and Mrs Grocott.
In this case the Claimants were wives of service personnel working at NATO headquarters in Belgium and in the Netherlands. They obtained employment in schools attached to those headquarters and were dismissed when their husbands’ service came to an end. They claimed in British courts for unfair dismissal and sex discrimination. The MOD appealed against a decision of the Tribunal that they did have jurisdiction to hear both claims notwithstanding that the Claimants worked abroad.
The EAT upheld the decision of the Tribunal.
In relation to unfair dismissal, decisions as to territorial jurisdiction are determined by reference to the case of Serco Ltd. v Lawson (where the Claimant worked as a security guard at the RAF base on Ascension Island).
In relation to expat employees, this case made it clear that the fact that the employer is based in Great Britain and that they were British nationals is not enough alone to bring employees within the scope of British employment legislation. There has to be other features peculiar to their employment which creates a ’special connection’ with Great Britain. In this case, the ’special connection’ was thae fact that their spouses had been posted abroad as part of the British military contingent. The ’special connection’ does not, therefore, have to be some inherent feature of the work.
In relation to sex discrimination, on the face of section 6(1) and 10 of the Sex Discrimination Act 1975, the Tribunal had no jurisdiction to entertain the claims. However, this has to be viewed in context of the decision in Bleuse v MBT Transport Ltd [2008] and Duncombe v Department of Education and Skills [2010]. As the Claimants were complaining of treatment contrary to the Equal Treatment Directive then the Tribunal is under a duty to construe any legislation to give effect to those rights. Bleuse applies that approach to territoral limitations. Therefore, the Tribunal judge rightly read into section 6(1) of the SDA the necessary qualifying words to give the Tribunal jurisdiction over the claim (even though the Act does contain express territorial limitation).
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By Liam - Friday, July 16th, 2010
This case at the EAT is unusual or slightly surprising at first glance for a number of reasons:
- The Claimant was unfairly dismissed despite the Tribunal accepting he defrauded her employer (thanks to the good old statutory dismissal procedure).
- The Claimant received no monetary award whatsoever (because the Tribunal accepted he defrauded his employer and committed acts of gross misconduct).
- The Claimant was found to have lied on oath and, as set out at paragraph 9, “at times seemed unable to distinguish between truth and fiction“.
- On appeal the losing party (the employer who, technically, unfairly dismissed the employee) received a costs order against the employee.
The EAT held the Claimant brought/conducted proceedings unreasonably bearing in mind he knew and even admitted his fraud. Whether the Claimant won or lost his claim was irrelevant for the purposes of the rules on costs (rule 40 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004).
It is also interesting that the EAT held at paragraph 39 that Claimants in unfair dismissal complaints are not entitled to pursue a complaint merely for the purpose of obtaining a declaration of unfair dismissal. The only purposes of an unfair dismissal complaint should be to obtain an award of money, to obtain re-engagement or to obtain re-instatement.
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By Olivia - Thursday, July 15th, 2010
The three months (minus a day) time frame for bringing the majority of employment related claims starts running from the effective date of termination (”EDT”). Clearly establishing this date is therefore crucial.
The EAT has considered another case where the EDT is uncertain due to ambiguous wording in a dismissal letter. In the case of Mr R Wedgewood v Minstergate Hull Ltd the dismissal letter, dated 26 November 2008, stated ‘I write to confirm that you can be released today and will still be paid up to and including your notice period dated Monday 1st December 2008′. Mr Wedgewood presented his Tribunal claim on 28 February 2009, three days late if the EDT was 26 November. The Employment Tribunal found the EDT to be 26 November.
On appeal, Mr Wedgewood contended his EDT was 1 December 2008. He relied on section 97 of the Employment Rights Act which states that ‘in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, [the EDT[ means the date on which the notice expires'.
The EAT considered the case of Lees v Greaves (Lees) Limited [1974] which provided that simply absolving an employee from working his period of notice does not alter the EDT.
It considered the cases of Palfry v Transco Plc [2004] and TBA Industrial Products Limited v Moreland [1982] which provided that the EDT could be varied by the parties expressly agreeing to this.
The EAT determined that the letter did not amount to an agreement to change the EDT, just an agreement to release the employee from working, and therefore the EDT was 1 December 2008 and the claim was presented in time.
The moral of this tale is employers need to be very careful about wording dismissal letters to be crystal clear as to when the EDT is, particularly where employees are ‘released early’ but paid in respect of their notice period.
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By Sarah - Friday, June 25th, 2010
The case published today in the EAT of Northamptonshire County Council v Entwhistle is a useful reminder of the law around the reasonably practicable argument when a Claimant presents a claim outside the normal time limit for unfair dismissal and has sought advice. In this case the Respondent wrongly informed the Claimant he had three months to present a claim when in actual fact he only had six weeks left. The Claimant instructed DFA law in Northampton who worked on the same assumption and negligently did not spot the error. The claim was submitted two weeks late but four weeks before the wrong date given.
The Response raised the time point and the matter went before the Regional Employment Judge who in first instance allowed the claim out of time, as he felt it was not reasonably practicable to present the claim in time. The EAT disagree and applied the Dedman principle (a 1970’s case) that where a Claimant consulted skilled advisers the question of reasonably practicability is to be judged on such advice as they reasonably would have given him not the actual advice he received.
It followed from the finding of negligent advice that the solicitors had not given advice they should reasonably have given him in all the circumstances. The fact the Respondent misled the Claimant first was a factor in the first instance decision but the EAT felt that Claimant had a chance to have this corrected by his professional advisers. The claim was dismissed and a finding of negligence made against the solicitor involved.
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