Employment
Employment Tribunals
16 April 13
Singh v Reading Borough Council UKEAT/0540/12; (2013) EMPLR 021
Employee Tribunal - witness statements - improper pressure
12 February 2013
Employment Appeal Tribunal (EAT)
Cox J, Mr A Harris and Mr S Yeboah
A Claimant cannot rely on witness statements prepared for employment tribunal proceedings to found a constructive dismissal claim.
S, a head teacher, complained in a tribunal of a campaign of racial harassment, discrimination and victimization by parents, staff, governors, council employees and others. A witness for the employer prepared a statement adverse to S. S believed this was the result of improper pressure from the employer. S resigned, saying the witness statement was the last straw and she had been constructively dismissed.
The EAT held that actions in preparation for a tribunal hearing, including the way a party adduces evidence for the trial, are absolutely privileged and cannot form a ground of a legal claim. The Claimant drew the EAT's attention to cases limiting the scope of absolute privilege, but the EAT said those cases distinguished between allegations of fabricating evidence at the investigation stage (not covered by absolute immunity) and allegations of fabrication of evidence for trial (covered). The EAT added that, at the hearing of her discrimination claim, cross-examination questions on the circumstances in which the witness statement was prepared would be impermissible. Her claim therefore failed.
To view the case transcript, you must subscribe to Jordans Employment Law Online (if you already subscribe click here to log in).
To request a free trial click here and select Jordans Employment Law online from the drop down menu
06 February 13
Scottish Ambulance Service v Laing UKEATS/0038/12; (2013) EMPLR 007
Employment tribunal - unless order
17 October 2012
Employment Appeal Tribunal (EAT)
Lady Smith
If a party does not comply with an ‘unless' order (ie an order that unless the party complies, the claim will be struck out), the claim must be struck out. Tribunals have no discretion.
L complained to a tribunal about the employer's withdrawal of an allowance previously paid to him. He was ordered to provide more details, including what he said he was owed, for what dates and the basis on which he claimed the allowances were due. He provided some of the information but still did not explain the basis of the claim. The employers applied for and were granted an ‘unless' order to provide the rest of the information. L's solicitors responded saying the claim was based on implied terms of employment - but without details of the terms they claimed were implied or why. More details were provided after the deadline for compliance with the order. The tribunal ordered that there should be a ‘pre-hearing review' to decide whether the claim should be struck out. The employer objected that the claim should already have been struck out automatically. The tribunal held it had a discretion whether or not to strike out the claim, and decided not to strike it out. The EAT overturned the tribunal's decision and held that the claim was automatically struck out when L failed to comply with the order. Partial compliance was not good enough.
To view the case transcript, you must subscribe to Jordans Employment Law Online (if you already subscribe click here to log in).
To request a free trial click here and select Jordans Employment Law online from the drop down menu
06 February 13
Fox v British Airways plc UKEAT/0033/12; (2013) EMPLR 005
Procedure - personal representatives
30 July 2012
Employment Appeal Tribunal (EAT)
Langstaff J
An employment tribunal claim on behalf of a deceased employee may only be brought after the employee's personal representative has been appointed by the tribunal. The compensation can include the payout under a life assurance scheme which would have been made if the deceased employee had not been dismissed.
F was dismissed. He died shortly afterwards. His father submitted an unfair dismissal and disability discrimination complaint to the tribunal. In the claim form, the father applied to be appointed as personal representative. The tribunal appointed him as representative but outside the three-month time limit for presenting complaints. The father then submitted a duplicate claim.
The EAT held that the claim should not have been submitted until the father was appointed representative. The first claim was therefore a nullity. But the duplicate claim was allowed to proceed because it was not reasonably practicable for the father to present the claim in time.
The father also argued that, if F had not been dismissed, his employment would have continued and he would have retained the benefit of his employer's life assurance scheme. That would have paid out about £85,000 to F's estate. The employers argued that compensation is meant to represent the loss suffered by the employee - not the loss to the beneficiaries of a life assurance policy. The tribunal agreed but the EAT held that F himself had lost the benefit of that payout because he had contracted for it; and it was not excluded by the rule that no compensation can be awarded for loss of income for a period after death (s 1(2)(a)(ii) of the Law Reform (Miscellaneous Provisions) Act 1934) because an insurance payout is not income.
To view the case transcript, you must subscribe to Jordans Employment Law Online (if you already subscribe click here to log in).
To request a free trial click here and select Jordans Employment Law online from the drop down menu
06 February 13
Fox v British Airways plc UKEAT/0033/12; (2013) EMPLR 005
Procedure - personal representatives
30 July 2012
Employment Appeal Tribunal (EAT)
Langstaff J
An employment tribunal claim on behalf of a deceased employee may only be brought after the employee's personal representative has been appointed by the tribunal. The compensation can include the payout under a life assurance scheme which would have been made if the deceased employee had not been dismissed.
F was dismissed. He died shortly afterwards. His father submitted an unfair dismissal and disability discrimination complaint to the tribunal. In the claim form, the father applied to be appointed as personal representative. The tribunal appointed him as representative but outside the three-month time limit for presenting complaints. The father then submitted a duplicate claim.
The EAT held that the claim should not have been submitted until the father was appointed representative. The first claim was therefore a nullity. But the duplicate claim was allowed to proceed because it was not reasonably practicable for the father to present the claim in time.
The father also argued that, if F had not been dismissed, his employment would have continued and he would have retained the benefit of his employer's life assurance scheme. That would have paid out about £85,000 to F's estate. The employers argued that compensation is meant to represent the loss suffered by the employee - not the loss to the beneficiaries of a life assurance policy. The tribunal agreed but the EAT held that F himself had lost the benefit of that payout because he had contracted for it; and it was not excluded by the rule that no compensation can be awarded for loss of income for a period after death (s 1(2)(a)(ii) of the Law Reform (Miscellaneous Provisions) Act 1934) because an insurance payout is not income.
To view the case transcript, you must subscribe to Jordans Employment Law Online (if you already subscribe click here to log in).
To request a free trial click here and select Jordans Employment Law online from the drop down menu
09 January 13
Eastman v Tesco Stores Ltd UKEAT/0143/12; (2012) EMPLR 175
Employment tribunal - Strike Out Application
5 October 2012
Employment Appeal Tribunal (EAT)
His Honour Judge Peter Clark
A claim may be struck out at a pre-hearing review if a tribunal concludes that it has no reasonable prospect of success. The tribunal does not hear all the evidence at the pre-hearing review - there would be no point: it might as well hear the whole case. But this case shows it can consider some oral and documentary evidence and that strike-out applications can succeed even if there is a ‘crucial core of disputed fact'.
E asked for and was granted a career break. With the application form for a career break was a booklet which clarified that she would not be guaranteed the same job on her return. E denied ever having completed an application form and therefore ever having received the booklet. She also asserted that an employee who was junior to the manager who granted her request had told her that she would return to her old job - which the employer denied. On her return she was not given back her old job. She claimed she had been unfairly dismissed.
A tribunal heard some evidence and reviewed the documents. It concluded that E's version of events was ‘inherently implausible' and struck the claim out as having no reasonable prospect of success.
E appealed. One of the grounds was that the tribunal had misunderstood the law of strike-out. In the civil courts, strike-out applications invariably proceed without evidence, relying on the facts as stated in the claim. But, the EAT held, that is not so in employment tribunals, where the rules specifically allow oral and written evidence and representations. Therefore, even if there are core factual disputes, they can be resolved at a strike-out application.