Employment Tribunals

ACAS Early Conciliation Certificate valid despite naming 2 Respondents

In De Mota v ADR Network and anor, the EAT has held that an employment judge erred in rejecting a claim on the basis that the early conciliation (EC) certificate named two respondents. Although rule 4 of the Schedule to the Employment Tribunals (Early Conciliation: Exemption and Rules of Procedure) Regulations 2014 SI 2014/254 (the EC Rules) requires a prospective claimant to present a separate EC form in respect of each respondent when contacting Acas, it does not apply to the EC certificate itself, and there is no rule that renders unlawful a certificate that names two respondents.

DM worked as an HGV driver for the Co-Operative Group Ltd (CG Ltd) between 2012 and 2015. He sought to claim unfair dismissal, breach of contract, unlawful deduction from wages, holiday pay and notice pay. His case was that he was employed by, or contracted to work for, ADR, and that ADR assigned him to work for CG Ltd. ADR and CG Ltd disputed this, saying that DM had set up his own company providing his services to ADR, and that ADR provided his services to CG Ltd. DM completed an EC form online. The information provided to online applicants states, in accordance with rule 4 of the EC Rules, that in order to make a claim against more than one respondent the claimant must complete a separate form for each one. However, DM completed just one form, putting ‘ADR Network and The Co-operative Group’ in the box for the respondent’s name. He gave an address which is both the depot of CG Ltd and a business address of ADR. Despite the error, Acas issued an EC certificate, which identified the ‘prospective respondent’ as ‘ADR Network and The Co-operative Group’. DM went on to present his claim to an employment tribunal, naming ADR and CG Ltd as two separate respondents.

An employment judge rejected DM’s claim for non-compliance with the EC Rules. He ruled that the form that DM had submitted to Acas named neither of the respondents but rather a non-existent entity whose name was the conjunction of the names of both respondents. He noted that rule 4 renders it necessary to submit separate forms in respect of separate respondents. He therefore concluded that DM had failed to provide the required information in the prescribed manner and so the tribunal was deprived of jurisdiction by S.18A of the Employment Tribunals Act 1996. DM appealed to the EAT.

The EAT allowed the appeal. His Honour Judge David Richardson, sitting along, noted that, following the EAT’s approach in cases such as Mist v Derby Community Services NHS Trust (Brief 1040) and Drake International Systems Ltd and ors v Blue Arrow Ltd (Brief 1040), it is clear that the purpose of the EC provisions is limited – it is not to require or enforce conciliation, it is simply to build in a structured opportunity for conciliation to be considered. Furthermore, it is no part of the provisions to encourage satellite litigation. HHJ David Richardson pointed out that S.18A ETA, which sets out how the tribunal’s jurisdiction depends on compliance with the EC provisions, focuses upon the existence of an EC certificate. In his view, Parliament did not intend that the process leading up to the certificate should be subject to criticism and examination by the parties or the employment tribunal. For one thing, as was pointed out in Mist, if the prospective claimant does not provide the prescribed information in the prescribed manner, the EC Rules make it plain that Acas is not bound to reject the claim. For another, if it were open to the parties or the tribunal to go behind the certificate, it would also be open to them to challenge Acas’s conduct of the conciliation procedure. Thus, the employment judge erred in law in going behind the certificate and finding that DM failed to provide the prescribed information in the prescribed form to Acas.

HHJ David Richardson went on to hold that the employment judge was wrong to rule, in effect, that Acas had issued an unlawful certificate. Rule 4, which requires individual respondents to be named on separate forms, does not apply to the EC certificate, and there is no similar mandatory requirement elsewhere in the EC Rules. Nor should such a requirement be implied, especially where the effect would be to bar access to the legal system for a litigant based on a technicality. It may be that the issuing of a single certificate was an error on Acas’s part but that is not the same as saying that it was an unlawful certificate. The appeal would therefore be allowed and the claim remitted to the employment tribunal for proceedings to continue.

Link to transcript: http://www.bailii.org/uk/cases/UKEAT/2017/0305_16_1309.html

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Employment Tribunal claims plummet since introduction of Tribunal fees

Employment tribunal claims have plummeted by more than 9,000 a month, the Trades Union Congress has said, warning that steep fees have allowed discrimination at work to ‘flourish unchecked’.

TUC analysis of government figures shows that 83,031 claims were brought in 2015/16, down from 191,541 in 2012/13. Over the four-year period the number of single-claim cases has fallen by 69%; multiple-claim cases (where more than one person brings a claim against the same employer) has fallen by 79%.

TUC general secretary Frances O’Grady said: ‘These figures show a huge drop in workers seeking justice when they’ve been unfairly treated. Now bosses know they can get away with it, discrimination at work can flourish unchecked and people can be sacked without good reason.’

A further breakdown of Ministry of Justice figures show that 12,652 unfair dismissal claims were brought in 2015/16, down from 49,036 in 2012/13. Sex discrimination claims fell from 18,814 in 2012/13 to 5,371 in 2015/16. There were 2,001 race discrimination claims in 2015/16 compared to 4,818 in 2012/13. Disability discrimination claims fell from 7,492 to 2012/13 to 3,468 in 2015/16.

Figures for 2015/16 show that conciliation service Acas was notified of more than 90,000 disputes, but 65% of these were not settled by Acas nor progress to an employment tribunal.

O’Grady said: ‘The evidence is there for all to see. These fees – of up to 1,200, even if you’re on the minimum wage – are pricing out thousands each month from pursuing cases. Theresa May has repeatedly said she wants to govern for ordinary working people. Here is a perfect opportunity. She could reverse employment tribunal fees, and make sure workers can challenge bad employers in court.’

Last month the ministry was asked by Dawn Butler, Labour MP for Brent Central, what progress the department had made on its review of the effect of the introduction of employment tribunal fees, and whether a fixed publication date would be issued for the review.

Justice minister Sir Oliver Heald responded last week that the review ‘is making good progress and I expect to announce its conclusions in due course’.

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Early conciliation certificate not required for claim added by amendment

In Science Warehouse Ltd v Mills, the EAT has held that a claimant was not required to go through the early conciliation (EC) procedure in respect of a victimisation claim that she wished to add, by way of amendment, to her existing claim of pregnancy/maternity discrimination. The amendment of existing proceedings is a matter for the tribunal’s case management powers and the tribunal is not required to refuse to add a claim in respect of which the EC procedure has not been observed.

M was employed by SW Ltd from April 2013 until she resigned, during her maternity leave, on 9 March 2015. On 28 January 2015 she had submitted details of prospective claims of sex and pregnancy/maternity discrimination under Ss.13 and 18 of the Equality Act 2010 to Acas. She received an EC certificate on 27 February and on 8 April she presented the tribunal claim. SW Ltd’s response to that claim included an allegation that M would have been investigated for misconduct had she not resigned. M wished to bring an additional claim of victimisation, under S.27 EqA, based on this allegation. She made an application to amend her claim to include this ground. SW Ltd objected to the amendment solely on the basis that M had not complied with the EC procedure in relation to the additional claim. The tribunal dismissed that objection and allowed the victimisation claim to be added. SW Ltd appealed to the EAT.

The EAT dismissed the appeal. HHJ Eady QC, sitting alone, noted that the power to allow a new claim to be added by way of amendment is a matter of judicial discretion, to which no time limit formally applies. As for the EC procedure, S.18A of the Employment Tribunals Act 1996 requires that it is complied with in relation to any ‘matter’, rather than any ‘cause of action’ or ‘claim’. HHJ Eady QC rejected SW Ltd’s argument that ‘matter’ had to be read as referring to the claim in question. A broader interpretation was required, in order to avoid the EC rules giving rise to disputes and satellite litigation as to whether proper notification had been given of each and every possible claim subsequently made to the tribunal. Although amendments to an existing claim are not listed in S.18A(7) as a category of exception to the EC rules, this is because amendment is a matter for the tribunal’s case management powers in respect of which no specific exemption is needed.

HHJ Eady QC went on to reject SW Ltd’s contention that this broad interpretation would undermine the objective of the EC procedure by allowing new claims to be accrued without conciliation. Amendments are only permissible if allowed by the tribunal. If the tribunal refuses permission then the claimant might become a prospective claimant in respect of the new matter, within S.18A ETA, and so might have to invoke the EC procedure. If the amendment is permitted, however, the EC process does not arise. Accordingly, the tribunal in the present case was not bound to decline to add the new claim, which could not have been the subject of the original EC process. Had the subsequent claim been entirely unrelated to the existing proceedings then the tribunal might have refused to admit it, but that decision would be informed by a variety of factors, not merely the fact that no EC process could have been engaged in.

Link to transcript:

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Six year contract claim time limit does not apply in 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

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When may a Tribunal judgement be reviewed following new evidence?

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

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No reimbursement of EAT Fees by Respondent

Is there a presumption that the successful 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 was 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 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.

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A Tribunal can’t research the internet

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.

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Apparently you can’t vary Tribunal Orders by agreement between the parties

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

 

 

 

 

 

 

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