(A)The Tribunals, Courts and Enforcement Act 2007

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EMPLOYMENT TRIBUNAL PROCEDURE

Procedure in ET is quite dense, can be time consuming and should be taken seriously. The time limits are much shorter than in other civil jurisdictions and generally not easily extended. It is important to know your way round ET procedures and to attempt to use them positively rather than see them as a distraction or difficulty. This paper accompanies the slide presentation and aims to flesh out more detail in respect of some of the more technical aspects of the topic.

(A)The Tribunals, Courts and Enforcement Act 2007

TheTribunals, Courts and Enforcement Act 2007 received Royal Assent on 19 July 2007 and will be implemented gradually over the next two years. The Act's main purpose is to bring together the differing tribunals within one system, administered by the Tribunals Service (an executive agency of the Ministry of Justice, which took over this function from the Employment Tribunals Service (ETS) in April 2006). The employment tribunals and the Employment Appeal Tribunal (EAT) will share its administration with the two new tribunals, at the top of which sits the Senior President of Tribunals, a new position created by S.2 of the Act.
Other important changes include the enforcement of tribunal awards. Currently, tribunals have no enforcement powers of their own. If a party fails to pay the compensation awarded, the claimant must enforce the monetary award via the normal civil courts. This requires the claimant to apply to a county court by using the prescribed form, following which the court will order the respondent to pay up by a specified date. If the respondent fails to pay, the claimant is then entitled to commence one of the prescribed methods of enforcement. The Act will remove this preliminary step and, once the tribunal judgment has been registered, allow claimants to proceed immediately to enforcement in the same way that a judgment of the county court or High Court can be enforced immediately as of right - S.48(1) and paragraph 43 of Schedule 8.
Section 142, inserts S.19A into the Employment Tribunals Act 1996 (ETA), making similar changes in relation to the recovery of sums payable under Acas-conciliated settlements. Schedules 12 and 13 of the Act further implement changes to debt recovery, particularly regarding the law on seizure of goods. It is not clear when the Government had not indicated when these provisions will come into force.
Paragraph 36 of Schedule 8 to the Act inserts S.3A into the ETA and provides that tribunal chairmen may be referred to as employment judges. The Tribunals, Courts and Enforcement Act 2007 (Commencement No.1) Order 2007 brought this change into force on 1 December 2007.
Paragraph 40 of Schedule 8, inserting S.5D into the ETA, provides that judges who do not usually sit in employment tribunals or the EAT can be drafted in from other tribunals to sit as chairmen in employment tribunal cases. However, this is only possible where the judge has been nominated by the Senior President of Tribunals and the consent of the President of Employment Tribunals has been obtained. A chairman hearing an employment tribunal case must have specialist knowledge in that field but it is unclear how frequently this power will be used. This provision has not yet come into force.
Following a judicial mediation scheme piloted in employment tribunals in Birmingham, London Central and Newcastle, the Act inserts S.7B into the ETA placing this power on a statutory footing and enabling other employment tribunals to make use of it in assisting parties in resolving their disputes. The new section provides that employment tribunal procedure regulations may include provisions enabling practice directions to provide for tribunal members to act as mediators in relation to disputed matters in a case that is the subject of tribunal proceedings - paragraph 42, Schedule 8. Before making such a practice direction, however, Acas must be consulted - paragraph 42(5).

(B) Statutory Dispute Resolution Procedures

The EAT ruled in Venniri v Autodex (UKEAT/0436/07) that ET’s must always consider compliance with statutory dismissal procedure.The Employment Tribunal must consider whether or not the dismissal is automatically unfair by virtue of a breach of the statutory dismissal and disciplinary procedures in every claim for unfair dismissal, whether or not the claimant raises the issue. This conclusion is unsurprising, since the wording of statute is mandatory, stating that in such cases of non-compliance with the procedure the employee claimant 'shall be regarded... as unfairly dismissed'.
In the modified procedure – which are dealt with only on papers without a meeting and usually take place once an employee has left employment a complaint has held to not be a grievance unless the “who, what, where, when and why” are set out. The EAT recently held in Clyde Valley Housing Association Ltd v MacAulay [2008] IRLR 616 that a generalized complaint of a ‘course of conduct likely to destroy trust and confidence’ did not suffice.
The statutory grievance procedures do not apply where the complaint solely concerns a dismissal, the EAT has decided in Lawrence v HM Prison service (UKEAT/0630/06) Under regulation 6(5) of the Dispute Resolution Regulations 2004, the statutory grievance procedures do not apply if the complaint is that the employer has dismissed or is contemplating dismissing the employee. In Lawrence the claimant complained about unfair dismissal both on general principles and because he alleged it involved disability discrimination. The employment tribunal held that although, as a result of regulation 6(5), he did not have to lodge a grievance about dismissal, he should have lodged a grievance about disability discrimination and so the tribunal was not entitled to hear that part of his claim. Overturning the tribunal's decision, the EAT held that the tribunal did have jurisdiction for that part because there was no obligation to raise a separate grievance about disability discrimination relating to a dismissal.
The EAT has reaffirmed that grievance procedures do not apply to discrimination claims against named employee respondents in Governors of Alford House v McDonald(UKEAT/0224/07) followingOdoemelamv Whittington Hospital (UKEAT/0016/06). Therefore no grievance need be set out in writing and sent to the employer before a claim may be submitted to the employment tribunal against an individual respondent. An identical claim against the employer will be rejected by the tribunal if:

the claimant has not, at the time that the claim is presented, set out his grievance in writing and sent it to his employer, or

the claimant has done so but has not let 28 days elapse before presenting the claim

If a grievance is submitted to the employer before the claim is submitted to the employment tribunal, this will not cause the time limit in respect of the claims against an individual respondent to be extended by three months. Therefore the strict primary three month time limit will apply. Note that, althoughOdoemelamandAlford Housestate that discrimination claims against individual respondents who are not the employer do not need to be preceded by a grievance:

such claims can only be presented to the tribunal in the first place if the employer is also a named respondent

where the employer is a named respondent, as well as one or more individual non-employer respondents, the statutory grievance procedures will apply to the claim against the employer

Further clarification on these anomalies may be required by the Court of in the future.

In Towergate London Market Ltd v Harris the Court of Appeal has held, by a majority, that Reg 15(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 entitled a claimant to a three-month time extension in respect of the lodging of her unfair dismissal claim, since she had reasonable grounds to believe that a dismissal procedure was ongoing upon the expiry of the original time limit. The Court reached this conclusion despite the fact that the claimant had not appealed internally against her dismissal under any formal process, but rather had raised a post-employment ‘grievance’ with her employer.

Ms Harris was dismissed for redundancy by TLM Ltd and informed that, should she wish to appeal against her dismissal, she had 7 days to do so. She decided not to appeal as she believed the selection process had been properly applied. However, she was later told that she had been ‘stitched up’ in her dismissal, and that she had been targeted for redundancy in advance of any assessment. She met with her former employer, but failed to reach a resolution. At that point, on the advice of her union representative, she wrote a letter to TLM Ltd raising what she described as a ‘formal grievance’. TLM Ltd replied that it was not obliged to deal with her grievance, as she had already been dismissed. The claimant subsequently commenced tribunal proceedings for unfair dismissal more than two months after the normal time limit for bringing such a claim expired.

The tribunal rejected the claimant’s stance that, on the basis that she had reasonable grounds for believing a dismissal or disciplinary procedure was being followed at the time the normal time limit expired, Reg 15(2) of the 2004 Regulations applied to extend time. It concluded that Ms Harris’ letter of 26 January raising a ‘grievance’ did not read as a request for an appeal under the dismissal procedure, and thus that the procedure had come to an end. Accordingly, the claimant’s claim was dismissed as out of time.

On appeal, the EAT held that the tribunal had focused too much on the question of whether the claimant had raised an internal appeal. Under the Regulations, the main issue was whether Ms Harris’reasonably believed that there was a dismissal procedure ongoing. The EAT held that she did, and should therefore be able to take advantage of the statutory time extension. TLM Ltd appealed to the Court of Appeal.

The majority of the Court agreed with the EAT. There are two questions that a tribunal has to ask when considering whether to apply Reg 15(2): Did the complainant have a belief that a dismissal or disciplinary procedure (whether statutory or otherwise) was being followed? And were there reasonable grounds for that belief? With regard to the claimant, both of these questions could be answered in the affirmative. Ms Harris had had ‘the active co-operation’ of TLM Ltd, which met with her post-dismissal and provided her with relevant documents prior to the company’s refusal to respond to her ‘grievance’. As a result, Reg 15(2) could be used to extend time, and the Claimant’s unfair dismissal claim could progress.

(C) Jurisdiction

In Anderson v Stena Drilling Pte Ltd [2006] UKEAT, the EAT held that an employee domiciled in Scotland who was employed by a company registered in Singapore to work in the far east on an oil rig whose operations were controlled by a UK company based in Aberdeen did not have the right to bring a claim of unfair dismissal under the Employment Rights Act 1996 because he could not establish that his base was in Great Britain at the time of his dismissal.
The place where the employee carries out the main or even the essential part of his work may not necessarily be his base, but if that is so it will be because, on the evidence, his base is demonstrably elsewhere. The fact that the employer is directed from another jurisdiction does not show that that other jurisdiction is the employee's base. Nor does the fact that his employer is related to companies in another jurisdiction make that jurisdiction his base. In Anderson, the facts failed to show any link between the claimant and Scotland other than that he was domiciled there. Neither Scotland nor any other part of Great Britain entered into the way in which the claimant's contract of employment was operated. The fact that co-subsidiaries of his employers which were involved in the operations of the rig on which he worked were based in Scotland did not mean that he was based there.
In Divine Bortey v London Borough of Brent [1998] ICR 886, the Court of Appeal held that the rule that a claimant is precluded from bringing fresh proceedings in respect of a matter which could and should have been litigated in earlier proceedings applies with as much force in tribunals as in the ordinary courts. Accordingly, aclaimant who had lost his claim of unfair dismissal could not subsequently bring a claim of race discrimination on the basis of evidence that emerged during the unfair dismissal hearing that his 'African accent' had been one of the reasons for his dismissal. The race discrimination claim should have been grafted onto the existing unfair dismissal proceedings, an adjournment being sought for the purpose if necessary.

(D)Claim Form

As from 1 October 2005, all claims must be submitted to the ET on the prescribed claim form ET1 - rule 1(3)Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. The consequences for not using the form are severe. If this form has not been used, the Tribunal Secretary must automatically reject the claim, return it to the claimant with an explanation as to why it has been rejected, and provide a prescribed claim form - rule 3(1).
Provided the ET1 is used, the fact that it may have been reduced in size in the transmission process is not a valid reason for rejecting a claim under rule 3(1). In Grant v In 2 Focus Sales Development Services Ltd EAT 0310-11/ 06 the Tribunal Secretary rejected the claimant's claim because 'it had not been presented on the prescribed form,' but gave no further explanation. The claimant's appeal against the rejection proceeded on the assumption that the reason was that the form had been shrunk in the faxing process and was smaller than the original ET1. The EAT, presided over by its President Mr. Justice Elias, accepted that the claimant had used the correct form for instituting proceedings and allowed the appeal. It rejected the employer's submission that size was an essential feature of the ET1 - the form was still a prescribed form despite the reduction in size.
Mr Justice Elias also emphasised the Tribunal Secretary's duty, under rule 3(1), to explain why a claim has been rejected in order to enable the parties to submit an acceptable form on resubmission. There is no need for a detailed explanation - it can be very brief, but must be clear. In this case, the explanation given had been plainly inadequate and had not provided the claimant with any assistance.
In addition to requiring the claim to be made on the prescribed form, rule 1(1) provides that the ET1 must contain all relevant required information, as listed in rule 1(4). If the form is incomplete, the Tribunal Secretary is obliged not to accept the claim (rule 3(2)(a)) and must refer it to a chairman for a decision as to whether it should be accepted or rejected (rule 3(3)-(5)).
Tribunal chairmen have been urged to construe rule 1(4)(a)-(g) flexibly in order to avoid denying claimants access to justice on what are little more than technicalities and consistently with the overriding objective. In Hamling v Coxlease School Ltd[2007]IRLR 8 EAT a tribunal chairman rejected the claimant’s claim because the ET1 omitted her address contrary to rule 1(4)(b). On appeal, the EAT overturned the decision. The crucial question for the chairman was whether the information omitted from the claim form was 'relevant' and 'material' having regard to the overriding objective. Given that all further communication would be with her solicitor, whose full contact details had been provided on the form, the claimant’s address was neither 'relevant' nor 'material'.
Where the required information has been provided but contains some minor error, tribunals should similarly allow such claims to proceed, subject to the necessary corrections being made to the claim form. So, a mistyped postcode or an incorrect name of a respondent should be corrected following an amendment application, provided such an amendment would be just and equitable. In Cummings v Compass Group UK and Ireland Ltd t/a Scholarest EAT 0625/06, the claimant’s solicitor misread her handwriting and entered the wrong surname on the ET1. The claimant’s application to amend the claim form was refused, the chairman holding that as the claim form did not comply with rule 1(4)(a) he had no jurisdiction to allow the amendment. The EAT allowed the appeal. Although on a strict reading of the ET1 the claimant's name was not included, she was clearly the identified employee who had worked for the respondent for some 30 years. There was therefore jurisdiction to hear the application to amend, and so the claim would be remitted to the tribunal to consider whether it was just and equitable to allow it.

(E) Time Limits

(I) Reasonable Practicability

In Beasley v National Grid Electricity Transmissions. EAT, 6.8.07 (0626/06) the EAT upheld the ET’s strict application of the time limit to a matter of seconds. The ET’s decision that it had no jurisdiction to hear a claimant's unfair dismissal claim, which was presented 88 seconds after the expiry of the relevant three-month time limit, could not be faulted. In coming to the conclusion that it had been reasonably practicable for the claimant to present his claim in time, the tribunal chairman had considered all relevant factors - such as whether the claimant knew of the applicable time limit, the steps that he took, and the impediments preventing him from achieving compliance.
In Kauser v ASDA Stores [2007] (UKEAT/0165/07) the EAT held that a police enquiry and stress was insufficient to make it not reasonably practicable to bring a claim in time. In Kauser the claimant, a check-out operator, was dismissed on the basis of theft. The claimant's belief that she could not bring an unfair dismissal claim while a police enquiry was ongoing and the fact that she was very stressed as a result, were insufficient to make it not reasonably practicable for her to bring her claim in time, in particular because the police enquiry finished before the time limit expired. Upholding the employer's appeal and dismissing the claim the EAT decided that:

the tribunal should have considered whether it was reasonable to have expected the claimant to have made enquiries before the police enquiry finished about bringing a claim for unfair dismissal
the claimant's ignorance of the time limit did not explain why she did nothing at all about getting advice or preparing her claim while the police enquiry was ongoing
it was plainly practicable, possible or feasible for her to have made the necessary enquiries for her claim to be ready once the police enquiry was over
there was no finding of illness or incapacity
there would need to be more than a finding that she was 'stressed' or 'very stressed'
neither the erroneous belief that she could not bring a claim while the police investigation was continuing or the stress relied on had any relevance once she was informed there was to be no criminal prosecution
the claimant had offered no explanation as to why it was not reasonably practicable for her to have presented her claim on the day she was informed there was to be no criminal prosecution or the two days afterwards before the time limit expired
the tribunal had erred in not addressing the issue of those days
if it had done so it would have had to conclude that it was reasonably practicable for her to have brought her claim in time

In RBS v Bevan [2007] (UKEAT/0440/07) the EAT considered the issue of reasonable practicability and delays for internal appeals and held that it is reasonable for a claimant to delay issuing proceedings until an internal appeal is concluded and, in exceptional cases, that may make it not reasonably practicable to commence proceedings in time. Failure to bring a claim within the relevant time limit puts the claim outside the jurisdiction of the tribunal and the tribunal cannot hear it unless it decides that time should be extended according to the relevant principles applying to that sort of claim. In an unfair dismissal case the 3 month time limit will be extended by such period as a tribunal considers reasonable if it is satisfied that it was not reasonably practicable for the claim to have been presented before the end of the 3 months. A tribunal will tend to focus on the 'practical' hurdles faced by the claimant, rather than any subjective difficulties such as a lack of knowledge of the law, an ongoing relationship with the employer or the fact that criminal proceedings or internal proceedings are still pending.
Where any (statutory or other) dismissal and/or disciplinary procedure applies, the basic time limit will be extended by three months beginning with the day after the day on which it would otherwise have expired if, under the Dispute Resolution Regulations 2004, Regs 2004, SI 2004/752 Regs 15(1)(a), 15(2):

the employee presents a claim to the tribunal after the expiry of the basic 3 month time limit, but