MOrsel: Rules, rules, rules! The importance of procedure in employment claims

Many employers facing employment claims are tripping up on avoidable procedural errors, most commonly regarding time limits, with the potential for significant financial exposure. 

Responding to a claim

Responding to a new Tribunal claim is paramount.  If the response is not submitted to the Tribunal in time, the employer and any named individual respondents are usually barred from defending themselves and then the claim inevitably will succeed by default.

The Tribunal recently released its Annual Report, and noted that 8% of claims received in 2018 were met with no response within the deadline.  This is well illustrated by three cases reported over the past 12 months (two involving the same organisation): 

·         In Neville v Dunelm (Soft Furnishings) Limited & Others, the employer and two individual respondents failed to submit any response by the Tribunal's deadline.  Reviewing the ex-employee's claim form, the Tribunal decided that there was sufficient information for claims of disability discrimination, unfair dismissal and holiday pay to be upheld.  A hearing will now take place to determine the level of discrimination compensation.

·         In Carr v Your Store (Tpg Limited), again the employer seemingly failed to submit any response.  In the absence of a statement of case to counter the allegations, the Tribunal determined that the employer had acted in breach of contract and awarded compensation in the Claimant's favour.

·         As we reported previously, in Dyulgerov –v- Your Store Limited & Others, a response to the claim was submitted six days after the Tribunal's deadline.  The respondents blamed a postal delay over the Easter period, but the Tribunal found that the response forms had been posted late.  Public findings of race discrimination were made against the employer and a named individual respondent, and compensation was ordered to be paid.

Whatever the merits and financial value of an employment claim, failing to submit a valid response leaves the employer – and any individual respondents – fully exposed to adverse findings and an order to pay compensation if the opportunity to contest the allegations is lost.

Any new Tribunal claim should be considered and forwarded immediately to the appropriate part of the business, so that legal advice can be taken and the response can be submitted in time, or alternatively so that an extension can be sought within the original deadline. 

Lodging an employment appeal

An obvious but essential procedural step for any employer who finds that a Tribunal decision has gone against them is to lodge a valid employment appeal. 

An application for leave to appeal must be made within 28 days of the Tribunal's relevant decision, and as a matter of procedure the appeal must relate to a point of law only, not a question of fact. 

Two recent cases in Jersey confirm the approach the Tribunal will take in deciding whether an appeal should be allowed to proceed: 

·         In Latimer v Barons t/a The Lookout, an application for leave for appeal was made nearly six months after the date of the Tribunal decision to which the appeal related.  Rejecting the application, the Tribunal noted that any application for leave to appeal which is made after the 28 day time limit will need to be more compelling the later it is made – in other words, the longer the appeal is left, the more clear cut the appeal issue must be.

·         In De Sousa v Ruby's Limited t/a Ruby's Lounge and Bistro, the Tribunal refused the application because the appeal failed to identify an error of law.  There was, for example, no suggestion that the Tribunal chair misunderstood the law or misdirected herself, that there was insufficient evidence for the findings of fact or that no reasonable Tribunal could have come to the same decision.  Without such a basis, the appeal could not proceed.

Securing leave to appeal is a vital step towards overturning an adverse decision or judgment.  Forfeiting that step because of an avoidable procedural error is an expensive mistake for any organisation to make. 

Avoiding procedural pitfalls

The experience of the employers and individual respondents in the cases referred to above emphasises that overlooking the Tribunal's rules of procedure can be costly. 

Regardless of the stage or worth of an employment claim, it is imperative to identify and act decisively on the relevant procedural requirements.

Contact our Jersey Employment team to discuss these issues and how we can help, and get in touch with our Guernsey team for details of the wider position in the Channel Islands.