Employment Tribunals

In Grisanti v NBC News Worldwide Inc an employment tribunal has held that the six-year time limit that applies to contract claims in the civil courts does not also apply to contract claims brought in the employment tribunal under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 SI 1994/1623. There is no appellate authority on this point and the tribunal disagreed with an earlier tribunal decision that suggested that the six-year limit did apply. When G sought to claim her pension following the termination of her employment with NBC Inc she was informed by HMRC that no national insurance payments had been made on her behalf between 1996 and 2003. Although it was unclear how the failure had come about, G lodged claims against NBC Inc on a number of grounds, one of which was breach of contract. She lodged her claim on 24 March 2015, which was within the three-month time limit from the termination of her employment, as extended by the Acas conciliation period, for a contract claim in the tribunal. Although the claim was in time under the 1994 Order, NBC Inc argued that, as a contract claim, it was also subject to the general time limit set down by S.5 of the Limitation Act 1980, which is six years ‘from the date on which the cause of action accrued’. This time limit would have expired in 2009 and so, if it applied, G’s claim would be out of time. NBC Inc argued that Article 3 of the 1994 Order, which bestows jurisdiction in contract claims on the tribunal, should be read as incorporating the Act. It pointed out that Article 3 only applies to claims ‘which a court in England and Wales would… have jurisdiction to hear and determine’, and relied on an earlier employment tribunal decision supporting this interpretation, Taylor v Central Manchester University Hospitals NHS Foundation Trust ET Case No.2405066/12. The tribunal in the present case rejected NBC Inc’s argument and declined to follow Taylor. It did not consider that the wording of Article 3 prevented the claim, since the time limit is a procedural question in a civil court and a court does have jurisdiction to hear an out of time claim. The tribunal thought that it would be odd if the 1980 Act were to trump Article 7 of the 1994 Order. Furthermore, since Article 3(c) prevents an employee pursuing a contract claim in the tribunal until the employment has terminated, the Act, if it applied, would prevent an employee ever bringing a claim that was more than six years old, which would be an odd outcome given that the Order was intended to extend jurisdiction. The tribunal therefore concluded that it had jurisdiction to hear the contract claim under the 1994 Order.

Link to transcript: https://ids.thomsonreuters.com/download/file/fid/5527

In Outasight VB Ltd v Brown, the EAT has held that the Employment Tribunal Rules of Procedure 2013 did not introduce any change to the law on when a judgment may be reviewed in the light of new evidence. The principles set down by the Court of Appeal in Ladd v Marshall still apply to the question of whether the ‘interests of justice’ require a review (now known as ‘reconsideration’) under rule 70 of the 2013 Rules.

B brought claims of wrongful dismissal and breach of contract against VB Ltd after he was dismissed for theft. He argued that the dismissal was part of a plot against him by W, the director who had dismissed him. W asserted that he had been alerted to the theft by O, another employee, and that he had conducted an investigation that confirmed B’s guilt. O did not give evidence at the hearing and only W gave evidence for VB Ltd. The tribunal preferred W’s evidence and dismissed the claims, finding that B’s guilt was established. After receiving the judgment, B did further research into W’s background and discovered evidence of a conviction for fraud. He sought reconsideration of the judgment on the basis of this fresh evidence.

At the reconsideration hearing, the tribunal did not accept B’s assertion that he had been unable to find the evidence before the liability hearing. It noted that, under the ‘strict’ rule 34 of the Tribunal Rules 2004, this would not count as ‘fresh evidence’. However, the tribunal took the view that it had wider discretion under rule 70 of the 2013 Rules, which allows for reconsideration where necessary in the interests of justice, and agreed to revoke its judgment. The tribunal took into account that its original judgment had been finely balanced, that W’s credibility was central, and that B, who represented himself, had been ‘out of his depth’ at the original hearing. VB Ltd appealed to the EAT.

Her Honour Judge Eady QC, sitting alone in the EAT, reviewed the change of language between the 2004 and 2013 Rules. Rule 34(3) of the 2004 Rules set out specific circumstances in which a judgment may be reviewed. These included, at paragraph (d), where new evidence became available that was not available at the time of the hearing. Rule 34(3)(e) also provided for review where the interests of justice required it. Thus, rule 34(3)(d) reflected the principles governing the admission of new evidence on appeal set out by the Court of Appeal in Ladd v Marshall 1954 3 All ER 745, CA, and rule 34(3)(e) recognised that, even where these principles were not strictly met, the interests of justice may still require new evidence to be considered. In HHJ Eady’s view, the fact that rule 70 of the 2013 Rules dispenses with the specific categories did not indicate any change of position, nor did it suggest that the Ladd v Marshall principles no longer applied. The interests of justice may allow fresh evidence to be adduced where some additional factor or mitigating circumstance has the effect that the evidence in question could not be obtained with reasonable diligence at an earlier stage. This might be so where, for example, a party was ‘ambushed’ by the introduction of evidence at the hearing or was incorrectly refused an adjournment.

The tribunal had therefore erred in law in its approach. HHJ Eady went on to consider whether the result it reached was correct in any event and concluded that it was not. It could not be said that B was denied a fair hearing and the tribunal had failed to take into account the broader interests of justice, in particular the interest in finality of litigation. The appeal would therefore be allowed, the reconsideration judgment would be overturned and the original liability decision would be reinstated.

Link to transcript: http://www.bailii.org/uk/cases/UKEAT/2014/0253_14_2111.html

Is there a presumption that the successfull Appellant in an appeal will recover the £400 issue fee and £1,200 hearing fee from the unsuccessful Respondent?Seemingly not, given the EAT’s decision in Old v Palace Fields Primary Academy.

The Claimant was a teacher who had been dismissed after being accused of encouraging the bullying of one of her pupils.  The employment tribunal found the dismissal was fair.  The EAT found two (minor) faults in the tribunal’s reasoning and the case remitted back to the same employment judge.

However, the EAT did not make an order for recovery of the £400 issue fee and ordered only half of the £1,200 hearing fee to be repaid. It said that it had a wide discretion as to recovery of fees and that the Claimant had only been “partially successful” because the case had been remitted back to the same Employment Judge.

In East of England Ambulance Service NHS Trust v Sanders the EAT has held that a tribunal committed a procedural error in searching on the internet for evidence that supported a claimant’s case that she was disabled, and in relying on that evidence in its conclusions. The tribunal thereby gave the impression of bias against the respondent employer. The EAT also commented on a procedural issue in the appeal, warning parties that they are obliged, when preparing a bundle of authorities, to mark the passages that are to be relied upon.

An extact of from a letter we recently received from an Employment  Tribunal:

Employment Judge XXX directs as follows :-

“ Any variation to the Case Management timetable needs to be the subject of an application to the Tribunal. It is not acceptable for the parties to seek to vary orders between themselves”

What?….has the world gone mad?

Having acted for Claimants for over 20 years, I have been varying standard directions with my opposite number throughout that period to ensure the overriding objective is met, namely that the case is ready for final  hearing. Standard directions rarely fit every case and require variance to make them workable as a matter of course. Surely, as experienced practitioners in this area of law, we can be trusted to do that without having to trouble the Tribunal every time?

I wonder whether this new approach is symptomtric of EJ’s having more time on their hands since the dramatic fall off in the volume of claims since fees were introduced?

Oh well, best get back to making applications…

Dean Morris

 

 

 

 

 

 

The Law Society of Scotland has urged the Scottish and UK governments to undertake an urgent review of employment tribunal fees. It argues that the fees, introduced a year ago, were behind an 81% drop in the number of cases going before tribunals in the UK. The Society added that the fees represent “a major barrier to access to justice”. However, the UK ministers have said that it is “reasonable to expect people to pay” towards the £74m annual cost of the service.

BBC News

 

Simon Robinson, employment law partner at Gordons, Leeds, is interviewed in the Yorkshire Post. When asked: What law would you like to see changed? Mr Robinson responds: “Costs should be awarded automatically against claimants who bring unsuccessful claims. Even though I’ve secured costs awards for clients on numerous occasions, I’ve been frustrated in other hearings I’ve won where the claimant didn’t have to pay my client’s costs.”

Yorkshire Post, Page: 7

According to Hansard:

Employment Tribunals Service

Question

Asked by Baroness Drake

To ask Her Majesty’s Government what plans they have to lower the level of fees for access to employment tribunals.[HL302]

The Minister of State, Ministry of Justice (Lord Faulks) (Con): The Justice Secretary is committed to reviewing the impact of the introduction of fees in the employment tribunal system. The Ministry of Justice is currently finalising arrangements for the timing and scope of the review to ensure that the impacts can be properly assessed. An announcement will be made when the review begins, and again when it has been completed, setting out the results.

The number of employment tribunal claims has plummeted by around 80% for the second consecutive quarter, following the introduction of fees, official figures revealed today.

Claims dropped 81% between January to March 2014 to 6,019, compared with the same quarter in 2012/13, according to government statistics. In the last quarter of 2013 claims fell by 79%, compared with the last quarter of 2012.

Trade union Unison said today’s statistics ‘add significant weight to the union’s arguments that workers are being priced out of justice’.

Unison has been granted permission to appeal the High Court’s rejection of its judicial review challenging the introduction of tribunal fees.

The JR was dismissed in February on the basis that there was no quantifiable evidence at that point to assess the impact of the fees.

Dave Prentis (pictured), general secretary of Unison, said: ‘This downward spiral in the number of employment tribunal cases shows only too clearly that workers are being priced out of a fair hearing.

He said: ‘Today’s figures make shocking reading because individual claims are now at a perilously low level.’

Tribunal fees were introduced on 29 July 2013 and start at around £160 to issue a claim, rising to £250 a claim, depending on the type, and a further hearing fee ranging from £230 to £950.

Richard Fox, head of employment law atLondonfirm Kingsley Napley, described the fall in claims as ‘drastic’ and ‘way outside government expectations when the fees regime was first introduced last July’. He said that Unison may be able to use the statistics in its judicial review challenge.

It is unclear what the overall fall in employment disputes is, as some claimants in employment cases are turning to county courts instead. Former tribunals president David Latham told the Gazette last week: ‘A lot of cases are going through the county courts as the fees are much cheaper, so we don’t know what the figure is.’

BIS had today published its findings from the Survey of Employent Tribunal applications. About 2000 employee sand 200 employers were interviewed. Here are some of the key findings:

  • 79% of small employers had not been involved with a tribunal claim over the last two years
  • although the employees surveyed issued their claims before fees were introduced, 49% said that paying an issue fee would have influenced their decision to issue proceedings (mainly those with lower salaries or unlawful deductions claims)
  • 67% of employers use a representative at the hearing, whereas only 33% of Claimants use a representative
  • 79% of cases in which an offer was made resulted in settlement. The opening offer was made by the employer (rather than employee) 61% of the time
  • 17% of claims went to a full hearing (remember this is cases issued before fees were introduced)
  • the median tribunal award was £3,000, and the median level of expected award (by Claimants) was £4,000
  • 87% of employers said the award had been paid, whereas just 63% of Claimants said they had received the money of those who paid for legal or professional advice, the median amount paid was £3,000
  • 72% of claims were against private sector employers (broadly similar to the 69% of people who work in the private sector).