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Archive for April, 2020

Employment tribunals: time limits for claims

LIMITATION PERIODS FOR EMPLOYMENT TRIBUNAL (ET) CLAIMS

The basic limitation period for ET claims is 3 months from the effective date of termination of employment (EDT). This is normally extended by one month when the compulsory application to ACAS for early conciliation is made. The application for early conciliation must be made within the three-month period.

The ET very rarely allows the lodging of claims after the expiry of the limitation period.

It is important to be aware that the deadline must be carefully diarised. Running cases up to the wire is pointless, causes extreme stress and may result in the deadline being missed, for example where administrative mistakes or computer issues arise.

Case examples include:

Pora v Cape Industrial Services Ltd (2018), where P was dismissed by C. He instructed solicitors to complain of his unfair dismissal. The solicitors were recommended by Citizens Advice. He was repeatedly assured that all was in hand. No claim was made to the ET until the time limit had expired. P submitted his claim and requested an extension of time on the basis of the solicitors’ negligence. The ET ruled that it had been reasonably practicable for him to present his claim in time, and it had no jurisdiction to consider the complaint. P appealed to the EAT.

The appeal was dismissed.  The ET had correctly concluded that it was reasonably practicable for P to have presented his claim in time.

Lowri Beck Services Ltd v Brophy (2019). B, who has dyslexia, was employed by L until he was dismissed for gross misconduct. B’s brother, who is not legally qualified, helped him to start proceedings for unfair dismissal, wrongful dismissal and disability discrimination. The claim form was submitted out of time because of a misunderstanding as to the effective date of termination by B and his brother. The ET extended time in relation to the disability claim and the unfair and wrongful dismissal claims, on the basis that B was a vulnerable individual and his brother’s mistake arose from a mistake of fact rather than an error of law. L appealed to the EAT.

The appeal was dismissed. There was no basis to interfere with the decision of the ET.

Wray v Jewish Care (2018).  W was dismissed in March 2017. He brought claims for unfair dismissal and breach of contract out of time. He had limited financial means and poor literacy. In April 2017 he entered ACAS early conciliation. At that date he would have been required to pay £250 to lodge the claims. He stated that this was a reason for his late claims. In August 2017 he found out that the fees regime had been declared to be illegal. He did not lodge his claims until September. The ET refused to extend time. He appealed to the EAT.

The appeal was dismissed.

In some pre-July 2017 cases there might be an argument that affordability of the fee was a relevant consideration in time issues.

The ET had been entitled to reach its decision on the facts, given that there had been a further delay from August until September.

Rana v London Borough of Ealing and another (2018). The ET sent written reasons to the address of solicitors who no longer represented the claimants, with subsequent delays in the copies being received by the correct recipient. One claimant lost her claim for unfair dismissal and disability discrimination. In theory she was sent the written judgment on 28 April 2015. She wrote to the tribunal five times and made numerous telephone calls before finally receiving the documentation by email on 4 June. She lodged her appeal to the EAT on 15 July, which was 39 days out of time, assuming that the documentation had originally been sent to the correct address. Another claimant met the 42-day deadline but key documents were missing and were lodged out of time. The EAT judge refused to extend the 42-day deadline on the basis that a judgment and written reasons were still sent to a claimant even if they were sent to the wrong address. The claimants appealed to the Court of Appeal.

The appeals were allowed.

The tribunal had made a mistake as regards a matter of fundamental importance. The guiding principle should be that the party affected by that mistake should not be put in a worse position than if it had done its job properly.

One does not ‘send’ something to John Doe by sending it to Richard Roe. One does not ‘send’ a document to a party to litigation by sending it to the representative of another party. It seems to be wrong to say one sends something to someone by sending it to someone else.  

Miah v Axis Security Services Ltd (2018). M’s unfair dismissal claim was received by the ET one day after the expiry of the three-month time limit. The ET judge refused to accept the claim on the basis that it had been reasonably practicable for it to have been presented in time. M appealed to the EAT on the ground that the judge had failed to have regard to the fact that the day before the claim was presented was a non-working day.

The appeal was dismissed. Where there could be no receipt by the ET, for example because the office was closed and there was no letterbox, the limitation period might be extended. Where there was a letterbox, the period would not be extended.

If a claim presented on the next working day was in time, this would mean that the time limit was automatically extended in such circumstances. That was not what the regulations provided.


Employment tribunal claims: legal aspects and initial questions

LEGAL ASPECTS

If you think that you have been badly treated at work, for example by being dismissed, made redundant or subject to discrimination, the first step is to find out if you have a legal remedy. If you belong to a trade union, this should be the first port of call for legal advice.

Important note: if you have been employed for less than two years, your protection rights are minimal. It is not unknown for workers to be dismissed by cynical employers shortly before the end of the two-year period. If employers dismiss workers before the two-year continuous employment requirement, there is little that can be done, except:

A possible claim for breach of contract, for example where the employer has failed to comply with the terms of a probationary period.

Automatically unfair dismissal. There is no two-year requirement in such cases.

Automatically unfair dismissal covers a wide range of statutory rights and includes, in summary:

  •  pregnancy and maternity dismissals
  • some domestic and family entitlements
  • flexible working
  • part-time working
  • fixed-term workers
  • agency workers
  • assertion of a statutory right
  • health and safety
  • some trade union issues.

Discrimination: The Equality Act 2010 protects employees with protected characteristics against discrimination regardless of their length of service.

INITIAL QUESTIONS RAISED BY CLAIMANTS

In my experience, the most common questions asked by claimants include the following:

  • Do I have a legal remedy?
  • What are my chances of success?
  • How much will I get if I win?
  • How much will legal representation cost?
  • Can I get my job back?
  • Can I get legal aid?
  • Can costs be awarded against me?
  • Can we work on a no win/no fee basis?
  • Will I have to repay social security benefits?
  • Will I have to pay income tax on my compensation if I win?
  • Is the ET the same as a court?
  • What are the chances of the claim being settled?
  • What can I do if I win and the employer refuses to pay?

Perhaps the best way to start off an employment-related claim is to consider options and an ideal solution. For example:

Option1: do nothing and forget about it.

Option 2: start legal proceedings. This involves the first step of identifying possible causes of action.

Ideal solution: this is normally to recover financial compensation from a wrongdoing employer.

Claimants often state that they are not interested in the money, but want justice, or an admission of liability and an apology, or their day in court. These expectations don’t normally reflect the reality of ET cases, where the great majority of successful claims result in financial compensation.

If this solution is achievable, it should form the basis for the tactics and overall strategy of all future actions.

Questions before deciding course of action include:

  • Has there been a dismissal?
  • If so, when was it?
  • Was a formal grievance lodged?
  • If no dismissal, has a resignation been caused by a fundamental breach of contract?
  • Was there a last straw which forced resignation?
  • Is there any evidence of discrimination, for example  sex, race or disability?
  • Has there been a sham redundancy?
  • Is there any medical evidence related to, for example, work-related stress?
  • Has the claimant found new work?

Employment tribunals: history and status

Employment tribunals (ET) were created as industrial tribunals by the Industrial Training Act 1964. Industrial tribunals were judicial bodies consisting of a lawyer, who was the chairman, an individual nominated by an employer association, and another by the TUC or by a TUC-affiliated union. These independent panels heard and made legally binding rulings in relation to employment law disputes. The jurisdiction and powers of these tribunals were very limited.

Under the Employment Rights (Dispute Resolution) Act 1998, their name was changed to employment tribunals from 1 August 1998.

When I started practice in 1970, industrial tribunal cases were a welcome change from Crown Court trials. Hearings were held in a committee room and were informal. There was very little pre-hearing case management. Procedure and evidence at the hearing was at the discretion of the chair.

The Report of the Donovan Commission in 1968 stated that the aim of the industrial tribunal (as it then was) should be to make available an easily accessible, informal, speedy and inexpensive means of resolving employment disputes.

On the contrary, increased legalism, which has inevitably accompanied the expanded role of lawyers in the employment tribunal, is virtually impossible to reconcile with the expressed expectation that employment tribunal hearings have always been suitable for self-representation or assistance by non-lawyers including trade union officials and advice workers.

One specific and little-known example of the excessive legalisation of employment tribunal proceedings was the emergence of advice to representatives to exchange legal authorities with the other side before the hearing. This would seem to be incomprehensible to the average claimant and does not appear to be based on any statutory authority. It is far removed from the original purpose and function of the tribunal, which was the informal resolution of employment disputes.

In 2014 fees were introduced for employment tribunal applications. This had the desired effect, from the government’s point of view, of significantly reducing the number of applications. In 2017 the Supreme Court declared that these fees were unlawful. The government was obliged to withdraw the fees.

In a case heard in 2009, the judge made the following points:

  • Employment tribunal proceedings were intended to be as short, simple and informal as possible
  • An over-rigid approach was not required when an employment tribunal was considering an application
  • We all know that that intention has not been fulfilled and that employment law and practice have become difficult and complex.

Employment tribunals remain, marginally, a maverick element of the English legal system. Despite respeated efforts by lawyers to bring them into the mainstream, they continue to retain residual elements of the tribunal rather than the court, with the aim of providing a quick and cheap resolution of employment disputes. There is no dress code and lawyers do not have an advocacy monopoly. It is not clear for how much longer this can continue. The role of the employment tribunal as a cheap, quick and informal means of settling employment disputes looks set to become a footnote in employment law textbooks.

The current status of the ET is illustrated by the case ofWatson v Hemingway Design Ltd, in liquidation.

W was dismissed by HD shortly before the company became insolvent. He had an insurance policy which would normally have covered the liability of HD, including employment tribunal proceedings. W applied to the ET to invoke third party rights under the Third Parties (Rights against Insurers) Act 2010. Section 2 of that Act allows a claim to be decided by a ‘court’. The issue was whether the ET was a ‘court’ for these purposes. The ET found that it had no jurisdiction. W appealed to the EAT.

The appeal was allowed. The ET often has to decide questions of general law as incidental matters to an employment issue.

The question whether the ET is a ‘court’ depends upon the statutory context.

The aim of the 2010 Act was to deal with claimants having to go to a tribunal and to a court. The way to implement that aim was to treat the ET as a ‘court’.


Legal Latin: who needs it?

Legal Latin

Customs and Excise Commissioners v Polok and Another (2002)

P and others ran an escort agency. The Customs and Excise Commissioners stated that they should be registered for value added tax. A tribunal ruled that they were not registrable because their business activities were unlawful, consisting of the procurement of women for the purposes of prostitution.

On appeal, Mr Justice Jacob allowed the appeal and ruled that the supply of escorts was lawful. The activities of the escorts and their customers were separate from the service of the taxpayers.

As the Latin poet (Vespasian -Titus Flavius Vespasianus – Roman Emperor from AD 69) said, pecunia non olet (money doesn’t smell). The principle of fiscal neutrality prevents any general distinction in the levying of VAT as between lawful and unlawful transactions. The mere fact that conduct amounts to an offence is not sufficient to justify exemption from VAT.

English law is littered with Latin words and phrases. Many of these survive from the middle ages. Latin was the language for official documents and a number of Latin expressions were created by medieval lawyers. In 1730 an Act was passed which abolished legal Latin. Two years later this was repealed and legal Latin has remained with us ever since.

Examples of often-used Latin words and phrases include:

Et cetera: and the rest

Bona fide: good faith

Ex parte: on behalf of

Mens rea: guilty mind

Nemo dat quod non habet: No-one can give what he does not have

Quantum meruit: as much as has been earned

Causa causans: A judicial statement of 1940 made the following points:

Counsel has strenuously contended that the master’s action was novus actus   interveniens, which broke the nexus or chain of causation, and reduced the unseaworthiness from causa causans to causa sine qua non. I cannot help deprecating the use of Latin or so-called Latin phrases in this way. They only distract the mind from the true problem, which is to apply the principles of English law to the realities of the case.

Another example is land law, which has its origins in the feudal system. Student land law textbooks continue to quote “bad” Latin maxims, for example:

Cuius est solum eius est usque ad coelum et ad infero

Quicquid plantatur solo, solo cedit

Durante minore aetate.

The use of legal Latin has been the object of sustained judicial criticism. Examples of this in the context of health and safety are the concepts of res ipsa loquitur and volenti non fit injuria.

Res ipsa loquitur (the thing speaks for itself) is a rule of evidence which may lead to liability for negligence without further evidence.

For example, in the case of Fryer v Pearson (2000) F, a gas fitter, was working at P’s house. As he knelt on the floor, the point of a needle buried in a deep-pile carpet pierced his knee. He claimed compensation from P. It was argued on his behalf that res ipsa loquitur applied, that the incident spoke for itself, and that he therefore did not have to prove negligence. His claim was dismissed. The court ruled that this had been a freak, unfortunate accident. Lord Justice May commented that people should stop using maxims or doctrines dressed up in Latin, such as res ipsa loquitur, which are not readily comprehensible to those for whose benefit they are supposed to exist.

Volenti non fit injuria (the consent to the doing of a harmful act will prevent the recovery of compensation for damage resulting from the harmful act) is reputedly a principle which dates back to Aristotle. An example of its application in the context of health and safety is the case of ICI v Shatwell (1965). Two brothers were employed in a quarry as certified shot-firers. They agreed to ignore their employers’ orders and safety regulations when preparing for blasting. This resulted in one of the brothers being injured in an explosion. He claimed compensation from the employers. The House of Lords ruled that volenti non fit injuria applied. The employers were not liable.

This was the high water mark of the application of the doctrine in employment cases. For two centuries, the doctrine was repeatedly applied in relation to injuries suffered by manual workers. The courts ruled that knowledge of a risk in employment inferred consent to that risk. The doctrine is, thankfully, no longer applied in the context of health and safety.

Mens rea and actus reus

In relation to criminal liability (including health and safety offences) crimes are traditionally divided into mens rea (the guilty mind) and actus reus (broadly, the action forbidden by the law). Despite judicial criticism of this use of bad Latin, the phrases continue to be of crucial significance for the criminal law. The general rule is that the prosecution must prove both actus reus and mens rea.

All current criminal law textbooks analyse crimes according to these concepts.

Lord Diplock commented that it would be conducive to clarity of analysis of the ingredients of a crime if we were to avoid bad Latin and instead to think and speak about the conduct of the accused and his state of mind at the time of that conduct, instead of speaking of actus reus and mens rea.    

It is always tempting for lawyers with some knowledge of legal Latin to slip an obscure phrase into their documentation with the aim of confusing or intimidating the other side. This practice is now strongly discouraged by some judges.  For example, in Williams v J. Walter Thompson Group Ltd (2005), the Court of Appeal stated that the use by an employment tribunal of breaking down a long decision into numbered paragraphs, using small roman numerals running up to lxxiii, was not the most user-friendly method available.

The use of legal Latin can also be seen as a manifestation of intellectual laziness, for example the continued description of charitable legal work as “pro bono”. This is discussed in more detail in Chapter 6 (Mystery).

In my experience, in the council estates of South Wales, little else but the perpetuity rule is the topic of conversation.

In Liswerry in 1951 we liked nothing better than to sit before the fireside and discuss, over a glass of dry sherry and a charcoal biscuit, the implications of novus actus interveniens.

I well remember in Liswerry in 1950 how I used to pop next door to number cxxii to borrow a cup of sweet Sauternes, or how I cheered when Newport County won iii to i.   

My father worked the night shift in the aluminium works from x to vi.

Actus non facit reum nisi mens sit rea, my father would cheerily remark when he came off the night shift reeking of sweat and machine oil.

Alienatio rei preferatur juri accrescendi, my grandmother would quip as she bandaged up her varicose ulcer before setting off to work as a cleaner.

An even more extreme example of the use of ancient Classical languages in modern English law is a recently published law book which breaks its paragraphs down into Arabic, Roman and ancient Greek numerals. Everyone understands Arabic numerals, some people understand Roman numerals, but very few can translate ancient Greek except, possibly, those readers who have shared a public school education with the author.


Mediation and money

Mediation

It may appear to outsiders to be bizarre that the main aim of English civil procedure is to avoid litigation. A legal system has become so complex and expensive that those in charge of it advise users to avoid it if at all possible. Alternative dispute resolution (ADR) is highly recommended by the drafters of the reformed civil procedure rules. It is expressly stated that litigation should be a last resort. A refusal to consider ADR may have costs implications – once again, money is the key.

Mediation is one form of ADR. It consists of a sort of shuttle diplomacy between the parties and their legal advisers with the aim of settling disputes out of court.

Some clients have concluded that mediation has developed into yet another money-making quasi-legal racket. Its aim is to avoid litigation and it is said to be cheaper than litigation, which gives plenty of scope for high charges.

There is an absurdity about a system of civil procedure which is so expensive to operate that claimants are urged to use it as a last resort and to seek alternative means of dispute resolution. This means, in effect, that the massively sophisticated machinery for civil claims is available only to the very rich.

There is every chance that we are witnessing the development of another layer of legal procedure which, although not expensive to the crippling extent of full-tilt litigation, still costs more than most people can afford. Alternative dispute resolution is now, effectively, compulsory because a refusal to mediate carries costs implications.

The potentially rich pickings of mediation are illustrated by a circular advertising a commercial mediator training course at a cost of £1495 plus VAT. A worthwhile investment in another layer of law for the rich.


Sexism and the law

Albie Sachs and Joan Hoff Wilson, Sexism and the Law:A study of male beliefs and judicial bias

This book, published in 1978, documented for the first time the judicial response to attempts by feminists to use the courts to secure full citizenship. It also questioned the structural sexism which is so closely connected with the professional elitism of the legal system, and proposed ways to eliminate it. Sachs and Wilson argued that such sexism is not only unjust to female litigants and women lawyers but is also harmful to the men who remain entrenched within an archaic male-dominated profession.

Sachs and Wilson stated the view that sexism is all-pervasive in legal life. Their comments included, for example:

  • The legal profession and the judiciary are overwhelmingly dominated by men. Clerical work is feminised – women are generally employed to do secretarial and reception work.
  • The current structure of the profession is such that highly talented and fully qualified persons queue in vain for a chance to exercise their talents.
  • The club-like character and mannered quality of the legal profession.
  • British lawyers have cultivated a characteristic mode of speech, bearing and appearance, which manifests itself in a distinctive legal style. This style includes well-elocuted speech, carefully considered language and a detached manner with the aim of creating an aura of integrity.
  • These qualities are praised by supporters as hallmarks of erudition, objectivity, intellectual strength and moral trustworthiness. On the other hand, they are criticised by their opponents for their pomposity, complacency, dessication and lack of contact with the real world.
  • The created mystique of professionalism disguises the fact that professionals deal mostly with routine matters. Special knowledge is frequently merely information supplied to them by ancillary workers.
  • In terms of professional style, accents, impulses and modes of dress which jar against accepted standards are rapidly eliminated.
  • Features of professionalism involve the imparting of a stamp of special status.
  • A grouping together of people who compete fiercely with each other for income and prestige, but who stand firmly united against encroachment on their territory from the outside world.
  • A combative camaraderie is characteristic of lawyers.
  • Males of the English middle and upper-middle class are trained to suppress feelings, to accept formalised modes of conduct, to be intellectually aggressive and emotionally restrained.
  • Lawyers feed on deference. The lawyer is in control and the client is subservient.
  • The legal profession displays stereotypical masculine characteristics of rational thinking, competitiveness, aggressiveness, strength and seriousness.

Individual and collective human rights

Individual and collective human rights

For an ex-miner in Blaenau Gwent, suffering from a terminal lung disease, who develops a raging toothache, and cannot afford dentistry, it is of great solace to know that a Queen’s Counsel in chambers in Lincoln’s Inn has worked night and day to ensure that he has freedom of religion.

When my own father was dying, and no ambulance could be found to take him from hospital to a hospice, so that I had to pay a private ambulance to travel fifty miles, it was most reassuring for me to know that it was unlawful for me to be discriminated against on the grounds of my ethnic origins and that this right would be protected by a coterie of London QCs.

The rights protected by the Act of 1998 are generally recognised as civil and political rights, largely aimed at the protection of individuals. Social and economic rights are not covered. There is, for example, no right to work and no right to healthy and safe working conditions.

While the current trend towards the protection of human rights in relation to, for example, freedom of speech and the right to a fair trial, is without doubt desirable, progressive and moving towards human emancipation and social justice, these are essentially individual civil and political rights. They do not address social and economic issues. It is, for example, of little comfort to those living in the most deprived circumstances that liberal lawyers from London are willing to earn huge sums to protect their right to freedom of religion.

The human rights industry in England is rarely criticised from the left. It is normally selected for abuse by populist politicians and journalists. But this does not mean that it is beyond criticism. It should be realised that there is a substantial body of academic opinion, particularly in developing countries, which is highly critical of the Western emphasis on individual civil and political rights.

This has been described as the little magic territory of human rights which is just civil and political. It has also been pointed out that before people get to political rights they want to know what to do about Aids and what to do about food and water.

In 1986 Tony Gifford made the following points:

  • The most profound injustices in our society stem from political and economic, rather than legal causes.
  • Legal rights can do little to enrich the lives of those who have no jobs.
  • If no money is spent on building new homes, then the theoretical rights of  homeless people and slum dwellers are not of great value.
  • If the opportunity for a good education and good health is a perquisite for the wealthy, then the idea of equality before the law becomes a fraud.

Lord Bingham has pointed out that there is no universal consensus as to fundamental rights and freedoms. In some developing countries, a higher premium is put on economic growth than on the protection of human rights.


QCs, barristers and divorce cases

In the early nineteen-seventies, it was a rule of professional practice, but not of law, that where a QC was instructed, a junior barrister also had to be hired, normally for two-thirds of the QC’s fee. The client therefore had to pay three times for legal advice and representation: once for the solicitor, once for the QC and again for the junior.

The role of the junior was vague. He or she often just sat next to the QC, known as a leader, perhaps taking notes, asking the occasional question or looking up points of law.

In one case, the client was involved in a messy divorce. The custody of his children had been contested and was granted to his ex-wife as mother of the children. The client was determined to take the case to the Court of Appeal despite being advised that he had little chance of success. A QC was hired for £1000 a day, financed by the client’s father. The father also paid the costs of the solicitor and the junior. The case lasted two days in the Court of Appeal. The custody decision was confirmed on appeal, as seemed to be inevitable. The client was emotionally devastated. His father had to sell his house to pay the legal costs. He also had to pay the costs of the other side.

 

Before the Divorce Reform Act 1968 came into force, the undefended divorce case was an easy source of income for barristers. Where the divorce was not contested, and the facts were agreed, the contents of the divorce petition still had to be read out in court. The barrister simply had to take the client through the petition point by point, often bringing out the most harrowing details of cruelty or sexual perversion. For this technical exercise in public humiliation, the barrister normally picked up 25 guineas.