Archive for the ‘Employment Tribunal Procedure’ Category
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!
Posted in Employment Tribunal Procedure, Unfair Dismissal | No comments »
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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!
Posted in Disability Discrimination, Employment Tribunal Procedure | No comments »
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By Sarah - Wednesday, April 23rd, 2008
In the recent case of Force One Utilities v Hatfield the employer was debarred from taking any further part in the Tribunal proceedings and their response was struck out after they intimidated the Claimant in the car park during the adjourned hearing. The employer told the Claimant that he should be careful how he slept at night.
There was a background of other behaviour and comments by the employer and so when the matter came back before the Tribunal they struck out the response and debarred the employer from taking any further part in proceedings for their intimidatory conduct. The employee was representing himself and was extremely anxious about the employer’s threats.
The Employment Tribunal said when making their decision that they felt that it would not be a fair trial if the employer took part and the employer appealed to the EAT. The EAT held that the Employment Tribunal had had a proper evidential basis for that conclusion and the decision did not reflect any error of law. The Tribunal concerned was Bury St Edmunds - one of our locals, so we can visualise the scenario from the antics described which took place in the car park.
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By Philip - Monday, April 21st, 2008
The HRA has not been frequently used in the Employment Tribunal but here it was used to stunning effect by the Employer. The law of unintended consequences has meant that the mighty BT has used the HRA to have a claim dismissed by an ex-employee who suffered from poor health. Was the HRA there to protect mega corporations from claims by frail ex-employees?
The EAT has ruled that it was permissible for a Tribunal to strike out a Claimant’s claim where the Claimant’s illness had prevented her from having her claim heard.
Unusually the Claimant was impaled on the sword of Article 6 of the Human Rights Act, namely the right to a fair trial. The right to a fair trial meant having a hearing within a reasonable period. As the matter had dragged on for 3 years and the Claimant’s health meant that she was unlikely to be fit for the foreseeable future, a fair trial was not possible.
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By Philip - Tuesday, April 15th, 2008
As Sarah’s post yesterday highlighted, gone are the days when a claimant can flout a Tribunal’s order with impunity. Tribunals seem to be flexing their muscles in respect of striking out claims not only because they are weak but also because an order has not been complied with.
Another running theme in Tribunal procedure is the greater use of costs orders. These used to be as common as teeth on a hen, you were more likely to find Elvis in the local chip shop than have a costs order made.
Times are changing and costs orders are more frequently being made. Last week we reported a £60k costs order, this week the EAT have heard a case involving a 10k costs order against a Claimant who had not impressed the Tribunal with the accuracy and honesty of his evidence. The EAT did not interfere with the order.
If the doom mongers are right and recession is just round the corner, those advising employees will be advising against a backdrop of Tribunals being more willing to make costs orders. Those ancient enough to remember the last recession will remember that mass redundancies were the norm. ITV news even had a weekly slot at the end of the news showing how many mass redundancies had been declared that week.
With mass redundancies came multiple Tribunal claims from those dismissed as redundant. Some of the leading case law in redundancy was made during recession - BAE v Green being a good example where the Court of Appeal gave clear guidance of the Tribunal’s role in judging (or not judging) employer’s selection criteria and their application.
Even in 1995 most of my employer case load was made up of Tribunal claims from redundant employees. The question is now that the law on selection criteria and their application is more settled, will employees in mass redundancy situation still bring claims if they know that a misconceived claim could swallow up some or all of their redundancy payment in a costs order?
Posted in Employment Tribunal Procedure, Uncategorized | No comments »
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By Sarah - Monday, April 14th, 2008
Fortunately the situation arises infrequently where we are tearing our hair out in despair at the failure of the other side to comply with the Tribunal’s orders. This may be down frequently to the legal representation on both sides. I have however had a case recently where I acted for an employer in an Unfair Dismissal case where the employee was irgnoring both me and the Tribunal Orders.
We received no documents or confirmation that there was none, no schedule of loss and no statements from witnesses. As the employee had acted in person I had written to him well in advance telling him what he had to do and by when and that if he was unsure he should seek legal advice.
Imagine my despair when the hearing is fast approaching and there is no response. I made an application to the Tribunal for an Unless Order. This was accompanied by the copies of the various letters I had sent chasing each direction. The Tribunal rather than grant the unless order then wrote to him to ask him for his comment. This I found a little odd. As an officer of the court I am telling them he has not complied and if they made the Order and he had, he could just tell them that was the case.
With less than a week to go still no unless order. Our attendance on the day of the hearing was excused as we were unsure as to whether the Claimant would attend. He did and withdrew his claim. Thankfully for him my client decided not to throw more money after bad and pursue him for a costs order irrespective of the positive chance of success.
I did wonder whether if they had made the unless order I would then have had to write in to the Tribunal to have the Claim struck out. The answer has been revealed in a recent case of Chukwudebelu v Chubb Security Personnel which had clarified that like County Court proceedings the order takes effect on the day that it expires. I did not need to make a further application. It would probably have been worth chasing the Tribunal for the order of strike out but no further application would have been necessary. Whilst not frequently used, this is of note on the rare occasions that we have to get out the stick!
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By Liam - Friday, April 4th, 2008
The EAT has handed down judgment in a case that reminds advocates of the importance of dealing with any point raised by their opponent with which they disagree.
One barrister told a Tribunal that a point regarding regulation 8(7) of TUPE 2006 was not in dispute. The opposing barrister did not dispute this statement. On appeal, the opposing barrister sought to appeal the Tribunal’s finding on the regulation 8(7) point as well as another, unrelated, point. The appeal was dismissed. It was not open to the EAT to re-open a point that had been raised at an earlier hearing and dealt with without objection.
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