Archive for the ‘Employment Tribunal Procedure’ Category
By Emma - Monday, July 7th, 2008
The Court of Appeal, on a permission application, has upheld an EAT decision that a complaint of unfair dismissal presented 88 seconds late was out of time and so there was no jurisdiction to hear the claim.
See here for the judgment which recognises that the legislation imposes a harsh regime but states that “so do most time bars, which exist for the very good policy reason, that parties should know where they stand within a limited time of any dispute arising”.
So the lesson is, don’t leave it ’til the last minute!
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By Liam - Wednesday, June 25th, 2008
It is a well known fact that the time limit for an unfair dismissal claim is three months from the Effective Date of Termination (EDT).
The Tribunal does have a discretion to extend the time limit in cases where it was not reasonably practicable to present a complaint within the usual three month period.
In London Borough of Islington v Brown the EAT upheld an employer’s appeal against a decision that the Claimant could bring her claim almost 18 months late because she was suffering from depression and because she thought her union had done it.
Case law is clear that a failure by a union or solicitor acting on behalf of a Claimant is to be attributed to the Claimant herself. There was no adequate reason for the union’s failure to present the complaint on time. Two union officials each thought the other had done it. Accordingly the EAT held her complaint was out of time (whether the Claimant has a cause of action against her union in negligence is another matter).
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By Philip - Monday, June 23rd, 2008
Rebarbative was the description used by an EAT Judge to describe the statutory procedures. The same adjective could apply to the changes made to Tribunal procedure which happened at the same time.
The case illustrates the mess an employer can get into if unawares. A short service employee was dismissed before the one year qualifying period. He issues two claims to the Tribunal-one for a health and safety related dismissal, the other for sex discrimination. The latter was initially refused by the Tribunal as the employee had failed to lodge a grievance, it is re-presented after a grievance is lodged.
The employer wrongly thinks that the expiry date to present a response is the date 28 days after receiving the second claim. This is understandable as the employer sees one employee bringing a claim to Tribunal and thinks one comprehensive response will cover both claims.
Wrong! As it turns out the Tribunal does not receive a response to the first claim, enters a default judgement and awards a £16k award to the employee at the remedies hearing. The employer is debarred from defending as no response has been submitted.
£16k is quite a sum for a small, 4 employee Company. Needless to say, the employer appeals and wins its appeal.
The message from the case is read Tribunal correspondence very carefully as otherwise the Tribunal can enter default judgement if a deadline is inadvertently missed.
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By Liam - Wednesday, June 4th, 2008
It is easy to make silly mistakes about dates. The difference between 3 months and 12 weeks as well as the difference between 4 weeks and a month are obvious examples. Remember that February only has 28 days too….most of the time.
In this case at the EAT, a Claimant presented her complaint on 27 October 2005 when in fact the limitation period expired on 26 October 2005. The EAT held that a mistake in calculating the limitation date is not grounds for an extension of time for an unfair dismissal complaint on the “not reasonably practicable” basis.
The Claimant lost the right to pursue her complaint. The moral of this story is if you can’t use a calender(!) don’t leave presenting your complaint until the last day of the limitation period. Even if you can use a calendar, there are still risks associated with leaving the presentation of a complaint to the last minute - the fax machine could fail, your pc could crash or the dog could eat your form!
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By Philip - Wednesday, May 28th, 2008
If as a Solicitor you represent yourself in Tribunal proceedings, as the cliche goes, you have a fool for a client.
If you are a part time employment tribunal judge and you represent your spouse in employment tribunal proceedings, are you sufficiently at arms’ length to act professionally and in accordance with the standards of your profession?
This case illustrates, perhaps rather graphically, the mess you can get in if you act for someone who you are close to - including a finding by an employment judge that you have acted, ahem, slightly less than professionally.
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By Philip - Thursday, May 22nd, 2008
When employees are unfairly dismissed, they lose their statutory right to claim unfair dismissal for the first year in their new job (because employees must have a year’s continuous service to claim unfair dismissal). Traditionally there has been a rule of thumb that this is worth about £250.00, possibly more if an employee earns a particularly high salary or has particularly long service.
Recent Tribunal experience in this Firm has been that £250.00 is a bit on the low side. It is arguable that the ‘weeks pay’ figure used, for example, in the calculation of statutory redundancy pay (currently £330.00), would be more appropriate. Not a massive increase, but worth keeping in mind!
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By Philip - Wednesday, May 21st, 2008
A post I wrote the other day gave an example of a case where an unrepresented claimant gave the tribunal difficulties. On the one hand the Tribunal may see that the Claimant has a perfectable winnable point that he has not seen and advanced, on the other it is not the Tribunal’s job to act as an advocate for an unrepresented party. Does the Tribunal do nothing and potentially cause the claimant an injustice? Or does the Tribunal intervene and upset the employer?
One way these sorts of issues can be avoided is if unrepresented claimants avail themselves of a website that gives specific advice to unrepresented claimants, in particular how to conduct themselves at the hearing. The website can be found here
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By Philip - Tuesday, May 20th, 2008
The case reported here illustrates the difficulty Tribunals can get into when faced with two issues:
- The statutory dismissal procedure (aka rebarbative and soon to be redundant)
- The unrepresented Claimant.
In this case the Claimant had not put forward the claim that the statutory procedure was not followed in her ET1 but perhaps picked up on the idea during the hearing, following interventions by the Tribunal. The EAT in Scotland ruled that the right to appeal against dismissal only has to be communicated, but there is no requirement under the statutory procedure for such communication to be in writing.
Most employers would be best advised to wear belts and braces and communicate the right of appeal in writing in the dismissal letter. By putting the right of appeal in writing any subsequent point about what was and was not communicated during the meeting is neutered. Neutered points bear no fruit.
The EAT also makes some interesting observations about how parties without representation should be treated during the hearing.
Posted in Employment Tribunal Procedure, Redundancy, Statutory Procedures | No comments »
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By Philip - Wednesday, April 30th, 2008
Just as, so the old joke goes, there is a gap in the performance of the England Football team- Excellent on paper, rubbish on grass, there can sometimes be a gap between what a written contract says and how it is performed, or perceived to be performed.
Differences between written contract terms and actual performance of the contract lies at the heart of the self-employed/ employee debate raging in some quarters of employment law.
If your contract for services (self employed contract) says one party is not obliged to offer the other party work and that party is not obliged to accept any work offered then the absence of mutuality of obligation means no employment status. However if in practice work is given regularly and accepted regularly does this mutate the contract into one of employee/employer?
The Court of Appeal has grappled with the issue and comes down mostly in favour of the written terms rather than the perceived performance. Read it here. What’s in the written contract is therefore vitally important.
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By Sarah - Tuesday, April 29th, 2008
Following on from my blog last week about employer’s conduct during a hearing this time we have another EAT decision about conduct by an employer.
This time the Claimant was claiming disability discriminination. The Employer again subjected him to abuse and intimidation calculated to deter him from continuing with the case after the initial hearing, which was set to determine whether or not the employee was disabled.
The Claimant sought to raise the complaints as fresh proceedings before the Employment Tribunal. The Chairman sent it back saying that the alleged conduct attracted judicial proceedings immunity. The Claimant appealed to the EAT.
The EAT held that if the conduct was proved it would amount to harassment and it arise out of and be closely connected with the employment relationship thus meaning that it would fall within terms of the DDA and be disability discrimination and the conduct would not attract judicial proceedings immunity.
These cases are quite unusual so to have two in one week is very unusual!
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