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

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

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

Enforcement of awards

There is reported to be a high level of failure of employers to pay tribunal awards. Payment can be enforced through the civil courts. High Court enforcement officers have power to recover unpaid awards and settlements. This involves completing Form EX727.

Striking out

The ET has the power to strike out a claim where it decides that the claim is scandalous, vexatious, has no reasonable prospects of success or that the way in which the proceedings are conducted is scandalous, vexatious or has no reasonable prospect of success. Appeal tribunals and courts have repeatedly stated that striking out is a draconian step and should not be lightly invoked.

Recent case law examples:

Failings by representative

Phipps v Priory Education Services Ltd  P’s claims were struck out by the ET because of failings by her representative, who was not a lawyer and was employed by a claims management company. The ET made a wasted costs order against the representative. P applied for reconsideration of the strike out order, arguing that to do so was in the interests of justice. She was not at all to blame and all correspondence had not gone to her, but to the representative. The ET and the EAT refused the application, applying the accepted principle that the failings of a representative did not generally provide grounds for reconsideration. The ET’s reasons had given P the basis for a strong claim in negligence against the representative. P appealed to the Court of Appeal.

The appeal was allowed. This was an exceptional case. P had not been at fault and had not been able to present her case. This outweighed the public interest in finality of litigation and prejudice to the respondent.

The possibility of a claim in negligence against the representative was wholly unrealistic and should be treated with scepticism. Warning letters should be sent to the claimant personally as well as to the representative.

Sually v HM Revenue and Customs  S was a litigant in person. His claim form was excessively long and included 200 pages of documents. The claim was considered by a number of ET judges who had issued case management orders and attempted to identify the issues. HMRC applied for a strike out of the claims. The ET struck out some of the claims and made a deposit order in relation to an allegation of direct discrimination and harassment. S appealed to the EAT

The appeal was allowed. The ET had not considered the case law related to strike out and deposit orders. The ET had been wrong to strike out some of the claims because they had to be considered in the context of the claims which were allowed to proceed.

The ET had been wrong to make a deposit order because there was a sequence of events stated in the further particulars which needed consideration at a full hearing.

Mbuisa v Cygnet Healthcare Ltd M, a litigant in person, did not have the necessary two years’ continuous employment for an unfair dismissal claim. He complained of automatically unfair dismissal on health and safety grounds. It was not clear what he was trying to argue in his pleadings. The ET struck out the claim on the basis that M had not shown that any factor related to his leaving work had health and safety implications. M appealed to the EAT.

The EAT allowed the appeal and made the following points:

* M was trying to say that because of his health and safety complaints the employer had allowed a situation to arise in which these things could happen. The ET had not engaged with this.

*  The better course of action would be to clearly establish what M was trying to say and to make a deposit order if necessary.

*  Particular care should be taken where a case is badly pleaded by a litigant in person, especially where the claimant’s first language is not English or where the litigant comes from a background such that they would not be familiar with having to express complex arguments in written form.

Baber v The Royal Bank of Scotland plc. In 2013 B complained of unfair dismissal and disability discrimination. The ET made two unless orders. The complaints were struck out for non-compliance but then reinstated. The complaints were again struck out after B failed to comply with case management orders which were not unless orders. B appealed to the EAT.

The appeal was allowed.

The ET had not recognised the draconian nature of a strike out decision and the importance of not too readily exercising the strike out jurisdiction.

There had been no recognition of the need to consider whether the sanction of strike out was a proportionate response in the particular circumstances of the case, including reference to the question of whether a fair trial remained possible, or a lesser sanction was available.

Deposit orders

Where an ET decides that a complaint has little reasonable prospect of success, it can issue a costs warning and order the claimant to pay a deposit of up to £1000 for being allowed to continue with the claim. To continue with a claim after a deposit has been ordered has been described as an act of reckless folly.

Case examples include:

Arthur v Hertfordshire Partnership University NHS Foundation Trust UK.A was dismissed from her employment with H. She argued before the ET that she was dismissed because she had made earlier protected disclosures, while it was the H’s case that the reason for the dismissal related to her conduct. The ET considered the public interest disclosures relied on by A and concluded that the claims had little reasonable prospect of success; it therefore struck out the claims and said that, if it had not struck out the claims, it would have ordered deposits of £500 to be paid. A appealed on a number of grounds, including that the ET erred in finding that two of the disclosures could not amount to protected disclosures on the basis that H had already been aware of the information disclosed, and that the ET only provided perfunctory reasons for making the deposit orders.

The EAT held that the ET’s conclusion to strike out the claims had been reflective of its view of the evidence – as to the likelihood of success – rather than the “no reasonable prospect” test that it was bound to apply, and it had therefore been applying too low a test.

As to the making of the deposit orders, the ET’s decision would stand. Accordingly, the ET’s decision in relation to striking out the claims would be set aside and replaced by the alternative finding that deposit orders should be made.

Tree v South East Coastal Ambulance Service HNS Foundation Trust UK. T complained of disability discrimination. At a preliminary hearing the ET made a deposit order of £1000. T appealed to the EAT. The order was set aside and an order of £500 substituted.

The EAT stated that, when making a deposit order, an ET needed to have a proper basis for doubting the likelihood of a claimant being able to establish the facts essential to make good their claims.

It was not apparent that the ET had regard to the way in which T’s case was being pursued when reaching its decision on the deposit order.

If there was a problem identifying the claim, the deposit order process should not be used as a substitute for case management orders, for example ordering further particulars.

Hemdan v Ishmail and another. H alleged that she was brought to the UK from Egypt by the respondents and was employed by them in circumstances amounting to slavery. She complained of race discrimination. The respondents were prosecuted in the criminal courts and were acquitted. The respondents applied for deposit orders. H stated that she had been recognised by the Home Office as a victim of trafficking, that she was unable to work because of illness, that her income was £125 a week employment support allowance and that if she was ordered to pay deposit orders she would not be able to continue with her claim. The ET ordered a payment of £75 for each of her allegations. The employment judge stated that it was not an inappropriate use of the power to make a deposit order which a claimant would find it difficult but not impossible to pay. H appealed to the EAT.

The appeal was allowed. H would be ordered to pay £1 per allegation.

The purpose of a deposit order is to identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims. The purpose is emphatically not to make it difficult to access justice or to effect a strike out through the back door.

An order to pay a deposit must be one which is capable of being complied with. A party without the means or ability to pay should not be ordered to pay a sum he or she is unlikely to be able to raise.

In the present case the amount of the order was set at so high a level as to impede the claimant’s access to justice.  

Appeals

Appeals from the Employment Tribunal to the Employment Appeal Tribunal (EAT) can only be brought on a point of law. Appeals to the EAT are not for the fainthearted and involve lengthy and complex procedural and administrative steps and a trip to London if the matter comes to a hearing. Notice of an appeal must be received by the EAT within 42 days from the date when written reasons for the ET decision were set to the parties.

What is a “point of law”? This issue has given rise to a mass of decided cases.

The general principles would seem to be as follows:

  • That the ET misdirected itself in law, misunderstood or misapplied the law; or
  • The ET misunderstood or misapplied the facts; or
  • The ET decision was “perverse”, that is, plainly wrong; or
  • The ET did not follow correct procedure; or
  • The ET hearing was improperly conducted.

It is fair to say that it is extremely difficult for an unrepresented person to carry out a successful appeal to the EAT.

My own experiences at the EAT include an occasion when the judge ordered, shortly before the hearing, that the order of documents for the hearing should be rearranged. There was no logical reason for this, but the judge had power to order it. This meant kneeling on the floor outside the hearing room and frantically reordering the document files. One result of this was that all the prepared submissions, which referred to the pagination of the documents, were no longer accurate. The judge made no allowances for this during the hearing and constantly interrupted me with criticisms of my referring to the page numbers of the documents. This was a good example of the misuse of judicial power. 

Time limits for appeal

Haydar v Penine Acute NHS Trust. H brought proceedings against P. The ET upheld his claim for unfair dismissal, with a 50% deduction for contributory conduct, and dismissed his claims of discrimination. H wished to appeal the judgment.

He had until 27 May 2014 to appeal. He lodged a valid notice of appeal on 12 May 2014 but there was no record of the appeal being received by the EAT, and H received no acknowledgment. Five weeks later H realised he had heard nothing. He telephoned the EAT, and was told they had not received the appeal paperwork.  H resent the appeal paperwork, and it arrived on 7 July 2014. This was out of time and H applied for an extension.

This was refused and H appealed to the EAT. The appeal was dismissed and H was referred to a booklet called ‘The Judgment’ available online. This explains the appeal process, and the strict time limits. The booklet states as follows:

If you have not received an acknowledgment from the EAT within seven days of posting the notice of appeal, you should contact the EAT to confirm they have received your appeal.’

H appealed to the Court of Appeal. The appeal was dismissed.

H had not sought to obtain a copy of the booklet. He had made several appeals previously to the EAT, and was conversant with the process. The loss of the paperwork was a good reason for an initial delay, but there came a point where the onus was on the litigant to take the initiative and check that the package had been received.

Email attachments

J v K and another

Five minutes before the deadline for appealing against a decision of an employment tribunal, J sent an email to the EAT with an attachment containing the relevant documents. The communication failed because the attachment was beyond the capacity of the server. J re-sent the documents in a number of smaller files which were received after the deadline. He was refused an extension of time and appealed, stating that he suffered from serious mental ill-health which affected his ability to communicate. He appealed to the EAT.  

The appeal was allowed.

* A guide on the government website stated that the size of attachments should not exceed 10 MB. Apart from that guide, an ordinary layman would reasonably expect that the EAT’s server would be able to accept all the necessary documents as an attachment. The guide was only available if the appellant knew of its existence.

* Unless and until the sever capacity was increased, consideration should be given to drawing attention to the problems rather more emphatically than was done at present.

* Where mental ill-health had contributed to a would-be applicant failing to lodge an appeal in time, that would always be an important consideration in deciding whether an extension should be granted.       

Websites/sources

Textbooks

Employment law, an adviser’s handbook, 14th edition, Legal Action Group,   £60

Employment tribunal claims: tactics and precedents, 4th edition, Legal Action Group, £38

Advocate (formerly the Bar Pro Bono Unit)

Advocate is a charity which finds free legal assistance from volunteer barristers.

It states the following:

We exist because committed barristers across England and Wales
care about access to justice for everyone.

We match members of the public who need free legal help with barristers who are willing to donate their time and expertise in deserving cases for those who are unable to obtain legal aid and cannot afford to pay. Advocate is the Bar’s national pro bono charity that makes it possible for barristers to balance a dedicated practice with making a significant contribution to the community.

www.weareadvocate.org.uk

Law Works

Law Works is a charity working in England and Wales to connect volunteer lawyers with people in need of legal advice who are not eligible for legal aid and cannot afford to pay, and with the not-for-profit organisations that support them.

www.lawworks.org.uk

General information re ET procedure

www.gov.UK/employment-tribunals

www.etclaims.co.uk

Law Centres Network

www.lawcentres.org.uk

Citizens Advice

www.citizensadvice.org.uk

Advice support network

www.adviceuk.org.uk


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