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Employment tribunals: hearings and advocacy

HEARINGS

ET hearings are generally recognised as being stressful and unpredictable, particularly for unrepresented claimants. In practice, employers who are represented by a solicitor or by a barrister may, paradoxically, be at a disadvantage if the claimant is unrepresented, because the ET judge may be more sympathetic to the claimant’s lack of knowledge of the rules of tribunal evidence and procedure. The reality, however, is that ET hearings pose extremely significant difficulties for unrepresented claimants. These difficulties can be reduced by attending other tribunal hearings in advance and observing the way in which they function.

Lawyers do not have an advocacy monopoly in ET hearings. Claimants may be represented by a person of their choice.

Composition of the ET

The ET is composed of an employment judge and two lay members. The lay members normally have experience in employment issues. They are selected from a panel following consultation with employer and employee organisations.

It is fair to say that the role of lay members has greatly reduced in significance and you should expect the hearing to be conducted by a judge sitting alone.

The clerk of the tribunal will normally provide general administrative help.

Advocacy points in general:

  • The judge should be addressed as Sir or Madam.
  • Hearings can be extremely boring and it can be difficult to keep up concentration, particularly on a hot afternoon.
  • It is now generally accepted that the English tradition of oral advocacy involves a massive waste of time and money. This applies to a lesser extent in the ET because of case management orders and the fact that most evidence will have been read by the judge before the hearing.
  • Most ET advocacy amounts to cross-examination of witnesses on their statements.
  • The “art” of the advocate is often seen to be the asking of questions of such detail and complexity, endlessly repeated with hardly noticeable variations, until everyone has lost track of reality and any answer can be challenged.
  • In practical terms, ET hearing advocacy depends largely on thorough preparation. If in doubt, seek the advice of the judge. If nervous, take deep breaths and sip water to deal with a dry mouth. 
  • Be aware that the other side (even a barrister) will almost certainly be stressed and anxious but hiding it. They may have picked up the papers for the case the night before the hearing, have had little sleep and travelled a long way to the tribunal.
  • The supposed image of calm efficiency in the tribunal is very different from the chaos which can reign in reality. Documents get lost, witnesses are late or don’t turn up at all. Be prepared for the unexpected.

Adjournment of hearing: disabled claimant

Leeks v Norfolk and Norwich University Hospitals NHS Foundation Trust (2018). L complained of disability discrimination. The employer applied for an order for L to provide further and better particulars (details of the claim) within 20 days and listed a preliminary hearing for a month later. L requested an extension of 11 weeks to comply with the order for particulars and for a further month for a preliminary hearing. Her request was based on her own ill-health and that of her husband. It was supported with letters from a number of doctors.

The request was refused on the basis that there was no full medical report. L renewed her request and sought a telephone case management hearing. At the preliminary hearing in the absence of L, the employment judge struck out the complaint on the basis that the claim had no reasonable prospect of success and L’s failure to comply with tribunal orders. He also awarded costs against L on the ground that she had acted unreasonably in bringing and conducting the proceedings. L appealed against the costs order, arguing that the tribunal judge had considered correspondence marked without prejudice save as to costs and had failed to make reasonable adjustments.

The appeal was dismissed.

The refusal of an adjournment and the decision whether to continue on the absence of a party was a case management decision.

Adjournment: mental health issues

Shui v University of Manchester and others (2018). S had a history of psychotic depression. He was able to pursue litigation and he complained of unfair dismissal and disability discrimination. Before the hearing, an issue arose as to his ability to take part. At a preliminary hearing, the judge referred to a letter from S’s doctor which stated that S was unfit to attend the hearing and should apply for a postponement. The respondents stated that if S applied for a postponement, they would apply for the claim to be struck out. S chose to proceed. The ET made many adjustments to help S to participate. During cross-examination S became visibly distressed. The tribunal agreed to a submission by the respondents’ counsel to proceed without further cross-examination. The claims were dismissed. S appealed to the EAT on the basis that he had been denied a fair hearing.

The appeal was dismissed.

Where litigants in person had mental health issues, employment tribunals had a responsibility to make allowances and to ensure that such litigants were in a position to make a free and informed choice as to the course of proceedings.

S had been aware that he could apply for a postponement but had chosen not to do so. The tribunal had been mindful of its obligations to the claimant. Looked at overall, S’s right to a fair trial had not been undermined.

Self-representation at ET hearings

The main drawback of self-representation is that it almost inevitably results in unbalanced or unequal hearings where the employer has legal representation.

Case law examples include:

Significance of legal niceties

Aynge v Trickett t/a Sully Club Restaurant (2018). On October 15 2016 A’s employer told her ‘this is your last shift tonight’ and ‘that’s it, we’re done’. She submitted an ET1 complaining of unfair dismissal and stating that she had been dismissed on October 15. In her subsequent witness statement she stated that she was told by the employer that she was not dismissed but she was not to work a night shift again. The employer argued that she had conceded that she was not dismissed and that her claim must fail. A was unrepresented. The ET dismissed her claim. A appealed to the EAT.The appeal was allowed and the matter remitted to another tribunal. The EAT made the following points:

The employment judge had taken an unduly technical approach and had not taken enough account of the fact that A was representing herself.

As A was a litigant in person, she could not be expected to understand the significance of legal niceties.

Even if the judge was right that the ET1 could not be interpreted as involving a constructive dismissal on October 15 or a constructive dismissal on October 16, he should at least have considered allowing A to amend her ET1.

Mental health issues

Anderson v Turning Point Eespro (2019). In 2009 A brought a sex discrimination claim against her employer. The claim was successful. The remedies hearing did not start until 2012. Judgment was given in 2015. A’s poor mental health was one reason for the delay. A was unrepresented and expert psychiatric evidence was needed. A appealed on the basis that she had not had a fair trial. She argued that insufficient adjustments had been made to take account of her mental health and that the ET should have sought evidence on what adjustments were necessary to achieve a level playing field.

The EAT stated that the responsibility to propose adjustments or particular measures rests with a party’s representatives rather than with the court.

The tribunal can expect a party’s interests to be looked after by his or her representatives. There was no need for a ‘ground rules’ hearing in every case with a disabled claimant and no general need to obtain specific evidence on potential adjustments.

Recording proceedings

Heal v The Chancellor, Master and Scholars of the University of Oxford (2019). H stated in his ET1 that he had a disability. He requested some adjustments including permission to use a recording device at the hearing because his conditions made it difficult for him to take contemporaneous notes. The ET ordered that the application should be made at a preliminary hearing. H appealed to the EAT on the grounds that he should not have to make an application, that the tribunal erred in failing to consider the matter before the preliminary hearing and in failing to consider that H would be in contempt of court if he attempted to bring a recording device into the building before permission was granted to do so.

The appeal was dismissed. The ET was entitled to deal with the application at a hearing rather than on the papers. There was no error of law in not considering the matter in advance of the hearing although the tribunal had not precluded that course in any event.

The EAT gave the following guidance on when parties might be permitted to make an audio recording of proceedings:

  • Permission to record proceedings is unlikely to be granted on a routine or regular basis. Each case will have to be determined on its own facts. However, it seems very unlikely that permission would be granted where the applicant fails to demonstrate that, for reasons related to a disability or medical condition, there is a complete or partial inability to take contemporaneous notes and that such inability would result in a substantial disadvantage.
  • The risk that a recording will be used for purposes other than that for which leave is granted can be mitigated by the tribunal issuing strict limitations on other use. If a recording is permitted simply to relieve a person of the burden of taking notes, then that recording will generally have no greater status in proceedings than that of any other set of notes. In particular, Tribunals will no doubt wish to remind parties that the restriction under the Contempt of Court Act 1981 on publishing a recording by playing it in the hearing of the public would also apply to the posting of any recording or extract thereof online.
  • The ET’s notes of evidence would continue to be the conclusive record of the hearing before it, certainly whilst it remains the position that employment tribunal proceedings are not routinely the subject of official digital recording. The fact that a tribunal has consented to a recording being made by a party, and the undisputed content of that recording appears to conflict with the tribunal’s written notes of evidence, would not mean that the recording automatically takes precedence. Whether or not it should take precedence in respect of any issue will be a matter for the tribunal to determine having regard to all the circumstances.

Member of ET alleged to have fallen asleep

Elys v Marks and Spencer plc and Others (2014). E complained of unfair dismissal and discrimination. Her complaints were dismissed and she applied for a review, alleging that a lay member of the ET appeared to have fallen asleep. The ET refused the application. It stated that it should itself decide whether there had been a procedural irregularity and it accepted the member’s explanation that he had been taking medication and had been alert except for a few seconds. E appealed to the EAT.

The appeal was dismissed.

Having regard to all the material evidence, including the medical evidence, any observer would conclude that there had been no improper risk of inattention and no procedural irregularity sufficient to vitiate the decision.


Employment tribunals: negotiating settlements

SETTLEMENT

Most claims settle before they come to a hearing. Settlement avoids the stress, inconvenience and expense of a hearing and achieves the object of a payment to the claimant. Settlements can be made at any stage of the proceedings, even up to the door of the tribunal courtroom. Much has been written about the skills of negotiating a deal. In fact, there is no magic to this. The overall aim is to get as high a payment as possible. Perhaps decide on a minimum acceptable amount and double it as an opening offer. There can then be further negotiations until a deal is reached. It should be noted that a counter-offer by either side will normally cancel any previous offers. It is worth remembering that if the employer has started negotiations, even with a derisory offer, then the employer wants to do a deal to close the case down. Negotiations can be stressful but are often exciting and can be very satisfying if a decent deal is done.

There are two basic ways in which a formal, binding settlement can be made:

  • By a formal agreement between the parties, normally in the form of a downloaded template. The claimant must be advised by an independent legal adviser before signing the form. This advice is normally paid for by the employer.
  • By a COT3 form authorised by ACAS.

The standard form of a settlement agreement essentially binds a claimant to sign away most, if not all, employment rights, in return for a cash payment. There are strict legal requirements for the contents of settlement agreements. The agreement normally contains a non-disclosure clause. It is important to be aware that the agreement is, in law, a binding contract. If either side fails to keep to the terms of the deal, civil court proceedings may follow.

Scope of COT3

Department of Work and Pensions v Brindley (2017). B complained of disability discrimination on the basis that her employer had refused to allocate her a parking space after a reorganisation, and this had worsened her disability. In April 2014 she was issued with a final warning for sickness absence and in November 2014 another for attendance. In December 2014 B signed a COT3 form which settled her claim and all other relevant claims arising from the facts of the proceedings up to and including the date of the COT3.

B then brought another claim arguing that, by giving her another final written warning in November 2014, the employer had again discriminated against her by reason of her disability. The employer argued that this fresh claim was barred by the COT3.

The ET found that the fresh claim could proceed. The new circumstances referred to in the claim were not part of the COT3 settlement. The fresh claim was a separate claim about a different warning in a different time frame.

The employer appealed to the EAT.

The appeal was dismissed.The COT3 agreement only covered the specific factual matrix of the proceedings of the original claim and not a later one, even if the facts were similar.

Breach of conditions of agreement

Pertemps Medical Group Ltd v Ladak (2020). L was employed by P as its CEO. When his employment was terminated he entered into a settlement agreement which included a clause stating that he would not make adverse or derogatory comments about P and would not do anything to bring it into disrepute. P alleged that L was in breach of this agreement. It obtained an interim injunction preventing L from acting in breach of the agreement. L argued that he had made protected disclosures and had acted as a whistleblower. P alleged that L had been in breach of the injunction.

The High Court ruled that, on the evidence, it was likely that P would succeed in establishing a breach of the settlement agreement.

P was entitled to an injunction.

Power to set aside

Glasgow City Council v Dahhan (2016). D’s claims of race discrimination were settled before they were heard. The claims were dismissed. D then informed the ET that he had lacked capacity to instruct his solicitor and to make decisions at the time the settlement was agreed. He asked for the ET judgment to be reconsidered. The ET set the judgment aside. The employer appealed to the EAT.

The appeal was dismissed.

Tribunals have the power to ensure that purported settlement agreements are valid. They can set aside agreements involving an absence of consent by one of the parties because of misrepresentation, economic duress or mistake.

This power includes the power to set aside an agreement on the ground of invalidity if one of the parties did not have the requisite capacity to enter into it at the time of signing.

Withdrawal of claim

When a settlement is achieved, the claim must be formally withdrawn. But note the following case:

Paul v Virgin Care Ltd (2019). Ms P was dismissed for misconduct. She brought a number of claims in the ET, including automatically unfair dismissal. She represented herself at a hearing because she could not afford legal representation. She withdrew the automatically unfair dismissal claim and the tribunal made an order dismissing that claim. She appealed to the EAT, arguing that the ET had failed to take care to ensure that she had a free and informed choice when she withdrew the claim and had exerted undue pressure on her.

The appeal was dismissed. The EAT stated that the withdrawal of the claim had been clear, unambiguous and unequivocal.

The ET had acted properly with a view to clarifying and understanding the way in which Ms P was putting her case. Ms P had been given the opportunity to consider whether or not to withdraw that part of her claim. No unfair pressure had been put on her.  

Withdrawal of claim: medical evidence

Campbell v OCS Group UK Ltd and another (2017). C, a claimant in person, withdrew her claim on the first day of an ET hearing on medical advice. The ET dismissed the claim. Two days later C asked the judge to reconsider the decision to dismiss. The judge ruled that there was no reasonable prospect of the tribunal revoking its judgment. C appealed to the EAT.

The appeal was allowed.C had produced medical evidence showing that she was under stress and unwell. She withdrew on medical advice and not on the merits of the claim. Within a very short time she had second thoughts. It might be that if she had been legally represented she would have applied to adjourn.

Withdrawal of claim: properly considered decision

Drysdale v Department of Transport (2014). D complained of unfair dismissal. He was represented at the ET by his wife. She became upset when she was told that the case would be postponed as part-heard. She made an oral application to withdraw the claim. The respondent’s representative made an oral application for the claim to be dismissed. This was granted and an order was made for D to contribute to the respondent’s costs. D appealed to the EAT which dismissed the appeal. D then appealed to the Court of Appeal.

The appeal was dismissed.

The ET had not failed to take adequate steps to ensure that D had taken a properly considered decision to withdraw his claim.

The ET did not have a duty to enquire into the health of D’s representative. She had authority to withdraw the claim and the ET was entitled to determine the question of dismissal without a written application.

The determination of the appropriate level of assistance or intervention in relation to litigants is a matter for the judgment of the tribunal.


Tolstoy on law

Tolstoy, Count Leo Nikolayevich (1828-1910)

Tolstoy has been described as a writer, aesthetic philosopher, moralist and mystic, the greatest European novelist. War and Peace and Anna Karenina are generally acknowledged to be the two greatest novels ever written. Tolstoy read law at Kazan University.

During the last twenty years of his life he wrote a number of essays expounding an innovative brand of non-violent anarchism, including the following commentary on law:

  • Laws are framed, and repealed, by human beings. It is not some sociological “iron” law, but ordinary man-made law, that produces slavery. The slavery of our times is very clearly and definitely produced by human enactments: about land, about taxes and about property.
  •  There is one set of laws by which any quantity of land may belong to private people, and may pass from one to another by inheritance, or by will, or may be sold; there is another set of laws by which everyone must pay the taxes demanded of him unquestioningly; and there is a third set of laws to the effect that any quantity of articles, by whatever means acquired, may become the absolute property of the people who hold them. And in consequence of these laws, slavery exists.
  • We are so accustomed to all these laws, that they seem to us just as necessary to human life, as the laws maintaining serfdom and slavery seemed in former times. No doubts about their necessity and justice seem possible, and we notice nothing wrong in them. But just as a time came when people, having seen the ruinous consequences of serfdom, questioned the justice and necessity of the laws which maintained it, so now, when the pernicious consequences of the present economic order have become evident, one involuntarily questions the justice and inevitability of the legislation about land, taxes and property which produces those results.
  • Land ownership: history shows that property in land resulted from the seizure of the common land by conquerors and its distribution to those who served the conquerors.
  • Taxes are taken by those who have the power to take them.
  • People formerly established laws enabling some people to buy and sell other people, and to own them, and to make them work, and slavery existed. Now people have established laws that men may not use land that is considered to belong to someone else, must pay the taxes demanded of them, and must not use articles considered to be the property of others – and we have the slavery of our times.
  • The essence of legislation is organised violence. According to science, legislation is the expression of the will of the whole people: but as those who break the laws, or who wish to break them and only refrain from doing so through fear of being punished, are always more numerous than those who wish to carry out the code, it is evident that legislation can certainly not be considered as the expression of the will of the whole people.
  • There is one characteristic common to all laws, namely, that if any one man does not fulfil them, those who have made those laws will send armed men, and the armed men will beat, deprive of freedom, or even kill, the man who does not obey the law.
  • For every non-fulfilment of the established laws there is punishment: the offender is subjected, by those who make the laws, to blows, imprisonment or even loss of life.
  • Everywhere and always the laws are enforced by the only means that has compelled, and still compels, some people to obey the will of others, by blows, by deprivation of liberty and by murder. There can be no other way. It cannot be otherwise. For laws are demands to obey certain rules, and to compel some people to obey certain rules can only be done by blows, by deprivation of liberty and by murder. If there are laws, there must be the force that can compel people to obey them. There is only one force that can compel people to obey rules (to conform to the will of others) and that is violence; not the simple violence which people use on one another in moments of passion, but the organized violence used by people who have power in order to compel others to obey the laws that they, the powerful, have made, in other words, to do their will.
  • The essence of legislation lies in the fact that people who wield organized violence have power to compel others to obey them and do as they like.
  • Laws are rules, made by people who govern by means of organized violence, for non-compliance with which the non-complier is subjected to blows, to loss of liberty, or even to being murdered. 

Redundancy: employment tribunal claims

REDUNDANCY

The current health crisis has resulted in mass dismissals for alleged redundancies. It is not unknown for employers to get rid of workers using sham redundancy as an excuse. It remains to be seen how far the current law on redundancy dismissals will impact on these. However, the current law remains in place and it must be assumed that existing rules apply. The law dealing with redundancy is complex and includes a mass of case law. In summary, the rules are as follows:
The legal definition of redundancy involves one or more of the following:

  • Closure of a business as a whole
  • Closure of a particular workplace
  • A reduction in the size of the workforce.

General points in relation to redundancy include:

  • The right of workers to take reasonable time off to look for alternative work during their notice period
  • Entitlement to statutory redundancy pay
  • A possible claim for unfair redundancy dismissal where, for example, there has been inadequate consultation or unfair selection
  • Employers are generally obliged to offer suitable alternative employment
  • Discrimination issues may arise in relation to selection of workers for redundancy.

Money and employment tribunals

MONEY

The key to understanding the English civil justice system including ET proceedings, is the central role of money. Almost every aspect of English law has to do with money or claims for money.

Any civil claim is best fought, not with reference to the rights and wrongs of the case, the relevant law, the strength of the evidence or the right to justice. The key issue is money. What, in financial terms, does the claimant seek to achieve? If this approach is adopted, the case is more likely to run smoothly and the chances of success are increased.

Claimants need to be aware at the outset that ET proceedings can be very expensive. I have lost count of the number of clients who have not been able to start or continue their cases because of lack of money.

Legal expenses insurance

This can work well if you have it. It may be an add-on to house insurance or other insurances. The premium is normally low. It won’t apply to issues which arose before the insurance was taken out.

  • The insurer will normally insist on the case being handled by their own panel of lawyers. However, if you want your own chosen lawyer to act for you, the current legal position is that you have the right to choose your own lawyer, and you can insist on this. Insurers will normally eventually agree to the lawyer of your choice.
  • The insurer will also require evidence that the claim has a reasonable chance of success (normally at least 60 per cent ) and this must be confirmed by a lawyer.
  • If the insurer agrees to cover the cost of the case, it will issue detailed requirements to be complied with as the case develops. These include  keeping the insurer fully informed of any significant developments and submitting a monthly report. It is crucially important to comply with these requirements and to make full disclosure of developments, otherwise the insurance cover may be voided. Insurance contracts are contracts which require absolutely full disclosure.

Trade unions

Trade unions can provide legal assistance but they will need to be certain that a claim has reasonable prospects of success.

No win no fee

No win no fee schemes may sound attractive, but beware and be aware of the following:

  • No win no fee has been described as a grotesque over-simplification. In reality, it has developed into an impenetrable jungle of regulations and procedures, mostly concerned with insurance premiums and an element of moneylending. It has also been described as another gimmick to avoid state responsibility and to secure justice on the cheap.
  • In outline, a solicitor assesses the chance of success in a case and decides on a success fee to be paid on top of normal fees if the claim succeeds. This includes the cost of an insurance policy to cover costs if the claim fails.

Voluntary agencies

  • Law Centres
  • Citizens Advice Bureaux
  • Advice UK
  • Free Representation Unit
  • Bar Pro Bono Unit (now renamed Advocate)
  • LawWorks
  • Specialist Charities.

The websites of these organisations are listed at the end of this Guide.

My own view is that legal advice and representation should not be a matter of charity but should be provided free of charge by properly funded organisations staffed by salaried workers. This may not be realistic where government spending is not directed at the legal system.


Settlement of employment tribunal claims

SETTLEMENT

Most claims settle before they come to a hearing. Settlement avoids the stress, inconvenience and expense of a hearing and achieves the object of a payment to the claimant. Settlements can be made at any stage of the proceedings, even up to the door of the tribunal courtroom. Much has been written about the skills of negotiating a deal. In fact, there is no magic to this. The overall aim is to get as high a payment as possible. Perhaps decide on a minimum acceptable amount and double it as an opening offer. There can then be further negotiations until a deal is reached. It should be noted that a counter-offer by either side will normally cancel any previous offers. It is worth remembering that if the employer has started negotiations, even with a derisory offer, then the employer wants to do a deal to close the case down. Negotiations can be stressful but are often exciting and can be very satisfying if a decent deal is done.

There are two basic ways in which a formal, binding settlement can be made:

  • By a formal agreement between the parties, normally in the form of a downloaded template. The claimant must be advised by an independent legal adviser before signing the form. This advice is normally paid for by the employer.
  • By a COT3 form authorised by ACAS.

The standard form of a settlement agreement essentially binds a claimant to sign away most, if not all, employment rights, in return for a cash payment. There are strict legal requirements for the contents of settlement agreements. The agreement normally contains a non-disclosure clause. It is important to be aware that the agreement is, in law, a binding contract. If either side fails to keep to the terms of the deal, civil court proceedings may follow.

Scope of COT3

Department of Work and Pensions v Brindley (2017). B complained of disability discrimination on the basis that her employer had refused to allocate her a parking space after a reorganisation, and this had worsened her disability. In April 2014 she was issued with a final warning for sickness absence and in November 2014 another for attendance. In December 2014 B signed a COT3 form which settled her claim and all other relevant claims arising from the facts of the proceedings up to and including the date of the COT3.

B then brought another claim arguing that, by giving her another final written warning in November 2014, the employer had again discriminated against her by reason of her disability. The employer argued that this fresh claim was barred by the COT3.

The ET found that the fresh claim could proceed. The new circumstances referred to in the claim were not part of the COT3 settlement. The fresh claim was a separate claim about a different warning in a different time frame.

The employer appealed to the EAT.

The appeal was dismissed.The COT3 agreement only covered the specific factual matrix of the proceedings of the original claim and not a later one, even if the facts were similar.

Breach of conditions of agreement

Pertemps Medical Group Ltd v Ladak (2020). L was employed by P as its CEO. When his employment was terminated he entered into a settlement agreement which included a clause stating that he would not make adverse or derogatory comments about P and would not do anything to bring it into disrepute. P alleged that L was in breach of this agreement. It obtained an interim injunction preventing L from acting in breach of the agreement. L argued that he had made protected disclosures and had acted as a whistleblower. P alleged that L had been in breach of the injunction.

The High Court ruled that, on the evidence, it was likely that P would succeed in establishing a breach of the settlement agreement.

P was entitled to an injunction.

Power to set aside

Glasgow City Council v Dahhan (2016). D’s claims of race discrimination were settled before they were heard. The claims were dismissed. D then informed the ET that he had lacked capacity to instruct his solicitor and to make decisions at the time the settlement was agreed. He asked for the ET judgment to be reconsidered. The ET set the judgment aside. The employer appealed to the EAT.

The appeal was dismissed.

Tribunals have the power to ensure that purported settlement agreements are valid. They can set aside agreements involving an absence of consent by one of the parties because of misrepresentation, economic duress or mistake.

This power includes the power to set aside an agreement on the ground of invalidity if one of the parties did not have the requisite capacity to enter into it at the time of signing.

Withdrawal of claim

When a settlement is achieved, the claim must be formally withdrawn. But note the following case:

Paul v Virgin Care Ltd (2019). Ms P was dismissed for misconduct. She brought a number of claims in the ET, including automatically unfair dismissal. She represented herself at a hearing because she could not afford legal representation. She withdrew the automatically unfair dismissal claim and the tribunal made an order dismissing that claim. She appealed to the EAT, arguing that the ET had failed to take care to ensure that she had a free and informed choice when she withdrew the claim and had exerted undue pressure on her.

The appeal was dismissed. The EAT stated that the withdrawal of the claim had been clear, unambiguous and unequivocal.

The ET had acted properly with a view to clarifying and understanding the way in which Ms P was putting her case. Ms P had been given the opportunity to consider whether or not to withdraw that part of her claim. No unfair pressure had been put on her.  

Withdrawal of claim: medical evidence

Campbell v OCS Group UK Ltd and another (2017). C, a claimant in person, withdrew her claim on the first day of an ET hearing on medical advice. The ET dismissed the claim. Two days later C asked the judge to reconsider the decision to dismiss. The judge ruled that there was no reasonable prospect of the tribunal revoking its judgment. C appealed to the EAT.

The appeal was allowed.C had produced medical evidence showing that she was under stress and unwell. She withdrew on medical advice and not on the merits of the claim. Within a very short time she had second thoughts. It might be that if she had been legally represented she would have applied to adjourn.

Withdrawal of claim: properly considered decision

Drysdale v Department of Transport (2014). D complained of unfair dismissal. He was represented at the ET by his wife. She became upset when she was told that the case would be postponed as part-heard. She made an oral application to withdraw the claim. The respondent’s representative made an oral application for the claim to be dismissed. This was granted and an order was made for D to contribute to the respondent’s costs. D appealed to the EAT which dismissed the appeal. D then appealed to the Court of Appeal.

The appeal was dismissed.

The ET had not failed to take adequate steps to ensure that D had taken a properly considered decision to withdraw his claim.

The ET did not have a duty to enquire into the health of D’s representative. She had authority to withdraw the claim and the ET was entitled to determine the question of dismissal without a written application.

The determination of the appropriate level of assistance or intervention in relation to litigants is a matter for the judgment of the tribunal.


Non-employees and health and safety law

HEALTH AND SAFETY AND NON-EMPLOYEES

Section 3 of the Health and Safety at Work, etc., Act 1974 (HSWA), in summary, requires employers to conduct their undertaking in a way which does not pose risks to the health and safety of non-employees. The aim of section 3 is to give protection to the general public and other non-employees, for example contractors. Breach of section 3 is a criminal offence and there would seem to be no reason why employers could not be prosecuted for risks associated with Covid 19.

A significant case on the scope of section 3 is RMC Roadstone Products Ltd v Jester (High Court, 1994). The facts, in outline, were that R Ltd was a company which manufactured road building materials. It engaged two contractors to replace asbestos sheets on its premises. The contractors were told to remove old asbestos sheets from the roof of a disused factory. As they were doing so, one of the contractors fell through a skylight and suffered fatal injuries. R Ltd was convicted of an offence under section 3. It appealed to the High Court.

That court allowed the appeal and overturned the conviction. It made the following points:

The prosecution had to prove three matters to establish liability under section 3, as follows:

  • The accused must be an employer
  • The activity or state of affairs giving rise to the complaint must fall within the scope of the accused’s conduct of its undertaking
  • There must be a risk to the health and safety of persons other than employees.

Where an employer left an independent contractor to work in a way which he saw fit, then that work would be outside the scope of the employer’s “undertaking”.

The deceased’s work in removing the asbestos sheets was outside the conduct of the company’s undertaking. He had been left to do the work in any way which he chose.


Covid-19 and breach of contract

BREACH OF CONTRACT

It has been reported that lawyers acting for employers are already preparing defences of frustration of contract and/or force majeure, related to the Covid 19 pandemic,in response to breach of contract claims in general, including claims to the ET.

Frustration of contract

The doctrine of frustration of contract means, in general terms, that a contract (including a contract of employment) may be discharged when events occur which make its performance impossible. There is a mass of case law on the effects of illness in relation to impossibility. The current position appears to be that temporary illness does not frustrate a contract of employment. It will only frustrate the contract where it is so serious as to bring an end to the possibility of performance in a business sense, for example by making resumption within a reasonable time a practical impossibility. 

Dealing with a frustration defence will involve legal arguments which may pose significant difficulties for unrepresented claimants.

Force majeure

The literal meaning of this is “superior force”.  It is a common clause in contracts that essentially frees parties from liability when an extraordinary event or circumstance beyond the control of the parties, such as a warstrikeriot, crime, epidemic or an event described as an Act of God for example hurricanefloodearthquake or volcanic eruption, prevents one or both parties from fulfilling their obligations under the contract.

There is no reported case law on the relationship between force majeure and pandemics or epidemics.

Force majeure does not apply as a matter of general law but depends upon clauses in specific contracts. Contracts of employment do not generally include such clauses, but they may do.

Again, dealing with a force majeure defence is likely to involve detailed legal arguments which will pose difficulties for unrepresented claimant.


Employment tribunals: time limits for claims

LIMITATION PERIODS

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:

Solicitors’ negligence

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.

Mistake of fact

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.

Wrong address

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.  

Non-working day

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.

Discretion of tribunal

Rathakrishnan v Pizza Express Restaurants (2015). R, a diabetic employed by P, was dismissed for breaches of food safety procedures. He complained of disability discrimination. This complaint was brought 17 days outside the three-month time limit. He applied for an extension of time on the basis that the claim was late because he feared being victimised because he was still employed by P. The ET refused to extend the time limit. R appealed to the EAT.

The appeal was allowed.

A multi-factor approach was required in the ET exercising its discretion to extend time limits. In the present case, considerations of the balance of prejudice caused and the potential merits of the claim were relevant factors. The ET had not taken these factors into account.

Extension of notice period

Wallace v Ladbrokes Betting and Gaming Ltd (2015). W resigned in writing from her job. The resignation letter was unambiguous and unequivocal. She complained of unfair constructive dismissal. The ET ruled that the claim was out of time. W appealed, arguing that correspondence and discussions with her employer meant that the employer had agreed to extend her notice period for 3 weeks, which meant that the claim was in time.

The appeal was dismissed.

Once W had unequivocally resigned, she could not unilaterally withdraw or extend her notice period. There had been no agreement to withdraw the notice of termination

Ignorance of right to claim

Paczkowski v Sieradzka (2017). P was dismissed after two months employment. She was advised by the Citizens Advice Bureau, ACAS, and her trade union, that she could not bring a claim for unfair dismissal because she did not have two years continuous employment. She was later advised by a lawyer that she could bring an automatically unfair dismissal claim without two years continuity of employment if the claim was that she had been dismissed for asserting a statutory right. She then brought a claim of unfair dismissal for asserting her right to have a written statement of employment. The three-month limit for bringing the claim had expired. The employment tribunal ruled that the claim could proceed out of time because P’s ignorance of her right had been reasonable in the circumstances, she had acted promptly in seeking advice after her dismissal and the claim had been lodged within a reasonable period once the possibility of a claim had been brought to her attention. The employer appealed to the EAT.

The appeal was allowed.

A claimant’s ignorance of the right to bring a claim did not mean that it was not reasonably practicable to bring a claim within the time limit. When P was aware of the facts, she could be expected to take reasonable steps to obtain advice.

Where a claimant consulted a skilled adviser she could not claim to be in reasonable ignorance even if wrongly advised.

The tribunal had failed to make specific findings as to the status of the advisers, the context in which the advice was given, the information provided by the claimant and the questions asked. The case would be remitted for further consideration.  

Six-year delay

Higgins v Home Office and another (2015). The ET rejected a claim of constructive unfair dismissal brought six years after the date of termination of employment by H, who had a history of mental illness. The ET stated that this was an abuse of process: the claim had been brought outside the time limits, the remedies sought were not those which a tribunal could award and H did not appear to be claiming unfair dismissal. H appealed to the EAT.

The appeal was allowed.

The procedure had been carried out without a hearing and without representations from the claimant. The overriding objective required the ET to have regard to any disability which it knew of. The ET judge had taken into account wholly mistaken factors.       


Costs in the employment tribunal

COSTS

Costs are not automatically awarded in the ET against a losing party. The tribunal may award costs where it is satisfied that a party has acted vexatiously, abusively, disruptively or otherwise unreasonably, or any claim or response had no reasonable prospect of success. “Vexatious” means bringing proceedings without sufficient grounds, for the purpose of causing trouble or annoyance to the respondent. Whether or not costs should be awarded is entirely a matter for the discretion of the ET.

Claimants need to be prepared to receive a costs warning letter from the other side, often stating that the claim has no chance of success and that an application for costs will be made. This is meant to frighten claimants and it may well succeed in doing so. The current wisdom is that a costs warning has become a standard practice by large firms of solicitors acting for employers. If you have a realistic claim, there is little chance of costs being awarded against you. But note the following recent cases:

£170,000 costs order

Brooks v Nottingham University Hospitals NHS Trust (2018). B made 18 protected disclosures. He complained that he had been subjected to a number of detriments by the employer as a result of having made those disclosures. The complaint was rejected by the ET because B had not established that any of those detriments were because of the disclosures. The employer applied for costs on the basis that B’s allegations were so weak as to have no reasonable prospects of success and B had acted unreasonably in pursuing them. The ET allowed the application and ordered B to pay the employer’s costs, estimated at £170,000. B’s appeal to the EAT was unsuccessful.

Costs limited to amount of compensation

Kuwait Oil Company (KSC) v Al-Tarkait(2019). A was dismissed by K for gross misconduct. He complained of disability discrimination, unfair dismissal and notice pay based on wrongful dismissal. The unfair dismissal claim succeeded. A’s basic award was reduced by 80 per cent for contributory conduct. The ET then dealt with rival costs applications. It decided that the costs awarded to K should be limited to the amount of compensation awarded to A and the costs awarded to the A, on the basis that K should not have incurred any costs in excess of that amount, and it was a reasonable level at which to set costs, taking account of  A’s financial resources. K appealed, arguing that the ET had erred in making the orders limiting the costs recoverable by K.

The appeal was dismissed. The order made was sufficiently clear to meet the requirement that it must specify the part of K’s costs payable by A. However, orders such as this one were not to be encouraged. A cap consisting of an exact amount would be much better, and an exact amount could easily have been stated here.

Possible deterrence

Smolarek v Tewin Bury Farm Hotel Ltd (2017). The ET ordered S to pay £5200 costs towards the respondent’s costs of £29,000. It found that S had unreasonably pursued claims with no reasonable prospect of success. The amount of costs was based on S’s ability to pay and would cause her to consider carefully before bringing any further claims. S appealed to the EAT. The appeal was allowed. The award of costs had been partly based on deterrence. This was an improper consideration. The real issue was the appropriate level of award without any consideration of deterrence. The issues were remitted to the tribunal for further consideration.

Amount of costs

Herry v Dudley Metropolitan Council and another (2017). H, a teacher at a community school, complained of race, sex and disability discrimination based on dyslexia and stress. All the complaints were dismissed. In relation to disability, the employment judge found that H had worked effectively as a teacher for more than two years before taking a long period of sick leave. This indicated that he had developed coping strategies to reduce the effect of any impairment. While stress might have occasionally exacerbated his dyslexia, he had failed to show that either the dyslexia or the stress had a substantial adverse effect on his ability to carry out normal day-to-day activities.

The respondent applied for costs. The tribunal found that H had proceeded with his complaints despite costs warnings from his union and two legal advice centres that his claims had no reasonable prospects of success. The tribunal took account of H’s means and found that although he was impecunious and unable to work, his future earnings prospects were good. He was ordered to pay the whole of the costs which amounted to £110,000. H appealed to the EAT.

The appeal against the costs order was allowed. The ET had been justified in making the order on the basis that H had acted unreasonably and the respondents had acted reasonably. However, the ET failed to explain sufficiently why its award was reasonable and proportionate, or to consider whether it should award a proportion of the costs or cap the amount payable, having regard to H’s ability to pay. The matter would be remitted to the ET to consider the issues.

Costs compensatory not punitive

Oni v Unison (2015). O’s claims to the ET were dismissed. The ET ruled that, by pursuing her claims after a deposit order had been made, she had acted unreasonably and was ordered to pay the whole of the respondent’s costs as assessed by the county court. O appealed to the EAT.

The appeal was allowed.

The ET had not considered whether, despite O’s unreasonable behaviour, it was appropriate and proportionate to make the costs order sought, leaving aside means, but by reference to all the circumstances of the case. Costs orders needed detailed and reasoned consideration. Costs were compensatory and not punitive.

The fact that a party was unrepresented was a relevant consideration.

The means of a party might be considered twice: in whether to make an award and in deciding how much was to be awarded. The tribunal had a broad discretion in making an award of costs but it had to be exercised judicially and reasons ought to be given.      

Ability to pay

Flint v Coventry University (2015). F was refused an adjournment and withdrew his ET claim. The tribunal dismissed the claim and ordered him to pay £9000 costs, having considered his ability to pay. F appealed to the EAT.

The appeal was allowed.

The means of a party to pay costs should be considered at two stages: first, if an award should be made, and second, the amount of the award. It was not compulsory for a tribunal to consider means.

The tribunal had failed to take into account relevant matters which went to the ability to pay. Alternatively, it had taken into account irrelevant matters or simply reached a perverse conclusion on the evidence before it.

Risk warning

Hussain v Nottinghamshire Healthcare NHS Trust (2016). During the hearing of a claim by H, the tribunal judge warned him that the apparent weaknesses in his case were such that a costs award might be made against him. After the case was adjourned, H lodged a complaint that the tribunal was biased. This was rejected. On the determination of the employer’s application for £100,000 costs, the tribunal noted that the employer had written to H three times pointing out the weaknesses in his claims and putting him on notice that it would seek costs against him. It awarded costs of 85 per cent of the total claimed. H appealed to the EAT which stated that tribunals have to give guidance to parties as to how their case might be viewed and the risks they might be taking if they continue down a particular path.

The EAT decided that the tribunal had not made up its mind early on. It had simply warned H of the risks. The tribunal had not adequately explained why it had made an order for 85% of the costs. This point was remitted to the same tribunal.