Employment tribunal procedure updated 2023: lessons from a long career – Part 4 (of 5)

Employment tribunal procedure updated 2023: lessons from a long career – Part 4 (of 5)

Employment tribunal procedure updated 2023: lessons from a long career – Part 4 (of 5)

Time limits

The basic limitation period for ET claims is 3 months from the effective date of termination of employment (EDT). There can be complications in identifying the EDT. In outline, where employment is terminated by notice, the EDT is the date of expiry of the notice. Where there is no notice, for example a dismissal for gross misconduct, the EDT is the day when the dismissal took effect. The three-month time limit is normally extended by one month when the compulsory application to ACAS for early conciliation is made.

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

Case examples include:

Pora v Cape Industrial Services Ltd, 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. 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.

Rana v London Borough of Ealing and another. 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.  

Recording hearings

Heal v The Chancellor, Master and Scholars of the University of Oxford.

H stated in his ET1 that he had a disability. He requested some adjustments including permission to use a recording device 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 1981on publishing a recording by playing it in the hearing of the public would also apply to the posting of any recording or extract 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.

Self-representation

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 example:

Aynge v Trickett t/a Sully Club Restaurant.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.

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. 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:

J v K and Another.The ET concluded that J had acted vexatiously, abusively, disruptedly and unreasonably in the way in which he had pursued proceedings. It was just and equitable that he should pay the defendant’s costs, assessed at £20,000.

J’s appeal was dismissed. The EAT found that the tribunal had identified and applied the correct legal principles and had been entitled to come to the conclusions which it had reached, including its summary assessment of the costs payable.

BLISS Residential Care v Fellows (2023).The facts, in outline, were that F was dismissed by B in October 2020. She instructed solicitors and her claim of unfair dismissal was handled by a newly qualified solicitor during the Covid-19 pandemic. The solicitor sent the ET1 by post by mistake to the Bristol ET rather than to the central office in Leicester. She resubmitted the material to Leicester but the claim was two days outside the time limit. The ET allowed the time extension. The employer appealed to the EAT. The appeal decision was as follows:

1. The appeal was allowed.

2. Any unreasonable mistake or ignorance on the part of a skilled legal adviser is attributed to the claimant.

3. None of the errors were reasonable. It was reasonably practicable for the claim to have been submitted within the primary time limit and the ET had no jurisdiction to hear it.

4. The resistance of the appeal was misconceived, being doomed to failure.

5. Costs would be awarded. F is aged 62, has cancer, is in receipt of benefits and has outstanding debts. A modest award of £1000 would be made.

Brooks v Nottingham University Hospitals NHS Trust. 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.

In another case example, D had a recognised disability. He complained of disability discrimination and harassment. He also argued that his grievance amounted to a protected disclosure and that he had suffered a detriment. The ET dismissed the complaints and allowed the employer’s costs application. D appealed to the EAT, arguing that the ET had failed to provide adequate reasons for the decisions which it had reached and that it had been wrong in law by moving straight from a finding that parts of the claim had no reasonable prospects of success to the conclusion that costs should be awarded without considering whether it should exercise its discretion to make a costs award. The appeal was partly successful and the case was sent back to the ET.

Costs: possible deterrence

Smolarek v Tewin Bury Farm Hotel Ltd. 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 that it 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.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. The respondents served a statutory demand on H as a precursor to bankruptcy proceedings. 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.

It would not assist the respondents to bring bankruptcy proceedings. The trustee in bankruptcy would not be able to make any significant payment in respect of costs. H would be discharged from bankruptcy after one year and the discharge would release him from the award. A party who applies for costs and relies on a party’s future earning ability to be taken into account, should state that there is an intention to bring bankruptcy proceedings. Bankruptcy might result in the debt being extinguished before any future earning capacity could be brought to bear.

Preparation time orders

These cover preparation time spent by unrepresented claimants. Note:

  • They apply to time used for working on the case, but not at a final hearing.
  • The ET assesses the time reasonably and proportionately spent.
  • The hourly rate is currently £41
  • Preparation time orders are covered by general costs principles.
  • The aim of such orders is to compensate litigants in person and not for profit representatives for the cost of tribunals.

About the author
Robert Spicer is Head of Chambers at Frederick Place Chambers, a niche practice specialising in employment law and health and safety. Details of the practice can be found on Chambers website: www.frederickchambers.co.uk