Summary In this case relating to a ‘without prejudice’ discussion involving a settlement offer, the EAT has confirmed that the protection of the ‘without prejudice’ rule will only not be applied where there is a clear case of unambiguous impropriety. Law The 'Without Prejudice' rule Communications that take place under this rule, when properly applied, fall within legal privilege and therefore cannot be admitted as evidence before a tribunal. This is to encourage litigants to settle their…

  Summary In this decision on time limits for tribunal claims, the Employment Appeals Tribunal (EAT) was tasked to consider, in a case where an employer has made an ‘offer’ to induce employees into forgoing collective bargaining over changes to terms and conditions, if the time limit for a claim ran from the date of the offer, or the date of when the change was imposed, finding the former to be the case.   Law Section 145B Trade Union and Labour Relations (Consolidation) Act 1992: (1)A…

Summary The Employment Appeal Tribunal (EAT) has ruled that a claim for unfair dismissal was submitted out of time despite being posted before the limitation deadline as the tribunal did not receive it until one day after the deadline. Section 111(2) of the Employment Rights Act (ERA) outlines that, when bringing a claim against an organisation, claimants have a period of three months from their effective date of termination in which to submit this claim to the employment tribunal (ET). It…

Summary The Employment Appeal Tribunal (EAT) has ruled that tribunals will only have the power to remove a judgement from the online register, and that anonymity will only be granted, in very limited circumstances Rule 67 of the Employment Tribunals Rules of Procedure 2013 outlines that tribunal judgements and written reasons should be entered onto the public register subject to certain exceptions. Since February 2017, all judgements on the public register have been published on the…

Summary Was an application to amend a direct discrimination claim to include indirect discrimination a mere re-labelling? Employment tribunals have case management powers to exercise their judicial discretion and amend claims. Relevant considerations for tribunals will include the nature of the amendment, relevant time limits, the time and manner of the amendment application and the hardship involved in refusing or granting the amendment. Facts Patka is employed at the London-based…

Summary Was a tribunal correct to strike out a claim once they were aware discussions had taken place with a journalist during a break in proceedings? The Employment Tribunal Rules entitle tribunals to strike out all, or part of, a claim where either party to the claim has conducted proceedings in an unreasonable, scandalous or vexatious manner. Facts Chidzoy had worked as a journalist for nearly 30 years. She made tribunal claims for whistleblowing, sex discrimination, victimisation…

Summary The EAT has ruled there are exceptional circumstances where employees can bring whistleblowing claims against co-workers in the employment tribunal even though the detriment took place outside Great Britain. s47B(1A) of the Employment Rights Act 1996 provides protection for workers against detrimental treatment from co-workers due to making protected disclosures. If an employee successfully presents a claim against their co-workers under this section, the detriment is also regarded…

Summary Where the effective date of termination is disputed, are pre-termination negotiations inadmissible under s111A of the Employment Rights Act 1996? S111A of the Employment Rights Act 1996 (ERA) makes pre-termination negotiations inadmissible in any tribunal proceedings relating to complaints of unfair dismissal. Pre-termination negotiations are defined in the legislation as “any offer made or discussions held, before the termination of the employment in question, with a view to it being…

Summary When determining whether a tribunal has jurisdiction to hear claims from employees working overseas, the tribunal has to assess whether the employment has a stronger connection to Great Britain and British employment laws compared to the connection with the overseas territory.   Facts Green was a British national. He was married to a Lebanese citizen and had lived in the Middle East for over 15 years. He provided consultancy services to the organisation; a limited company…

Summary In a landmark judgment, the Supreme Court decided in this case that the fees regime for employment tribunals was unlawful and indirectly discriminatory. The court quashed the Fees Order which introduced the payment system in 2013, resulting in the tribunals service ceasing to collect fees the following day.   The trade union Unison brought judicial review proceedings in the High Court in 2014, claiming that the introduction of tribunal fees in 2013 denied potential tribunal…

Summary The Court of Appeal has decided that it is appropriate for tribunals to uplift awards made for personal injury by up to 10 per cent, effectively approving an increase to the Vento bands setting out the broad category of compensation to be used in such cases.   This claim was brought by a cleaner working in London Underground’s premises in London, who complained she was the victim of disability discrimination, harassment and victimisation, initially against Rentokil and subsequently…

Summary The employee’s unfair dismissal claim in this case was ruled out of time, even though the claimant was unaware of the time limit for presenting it, and the solicitors representing him were closed down by the regulator, forcing him to start again part-way through the procedure with another firm.   Davies, a school caretaker, was dismissed on 12 June 2015. His solicitors began the Acas early conciliation process on 10 September, and concluded it on 25 September, meaning the unfair…

Summary Here the Employment Appeal Tribunal (EAT) laid out the ground rules for establishing whether expatriate UK employees can bring unfair dismissal and whistleblowing claims in an employment tribunal.   The Employment Rights Act 1996 (ERA) and the Equality Act 2010 do not mention the extent to which their provisions apply to employment outside the UK, but this question has been explored in case law. The case Lawson v Serco [2006] established that, as a general rule, an employee’s work…

Summary In this, the first Employment Appeal Tribunal (EAT) decision on ‘protected conversations’, the EAT clarified that the confidentiality of these discussions would be preserved, even though the employer had by implication given up its right not to have subsequent legal correspondence between it and its employee used as evidence in court. Bailey, a part-time legal secretary, maintained that her employer had made it clear to her that it wanted her to work full-time in the future. She did…

Summary Tribunal proceedings are generally open to the public; this means they can be attended by the press and the parties can be named in the decision. However, tribunals can make restricted reporting orders and anonymity orders, often collectively referred to as privacy orders.  Under the employment tribunal regulations, a tribunal can make a privacy order to prevent or restrict the public disclosure of any aspect of the proceedings either in the interests of justice, or to protect the…

Summary Following the introduction of fees for bringing an employment tribunal claim, trade union Unison applied for a judicial review, arguing that fees made exercising individual employment rights difficult and were also discriminatory.   The Court of Appeal has rejected Unison's claim that the employment tribunal fees regime is unlawful. The main thrust of the trade union’s case was that the fees are set at such a high level that some claimants are being denied access to justice because…

Summary In the case, the High Court decided that Afghan interpreters, employed by the British government and working with British forces in Afghanistan, could not bring discrimination claims against the British government.   The Equality Act 2010 does not specify where it applies geographically, but the employment statutory code of practice states that UK discrimination protection occurs when “there is a sufficiently close link between the employment relationship and Great Britain".  …

Summary A claim six years outside the time limit was allowed to proceed on appeal as the employee’s acute mental illness justified delaying the hearing for that length of time.   Employment tribunal rule 12 allows tribunals to reject all or part of a claim if they consider they have no authority to consider it, or the claim is formulated in such a way that the employer cannot respond to it, or it does not comply with Acas early conciliation requirements.   Higgins was employed from 2003…

Summary Tribunals can award costs orders against claimants who behave unreasonably in either bringing a claim or pursuing it, but these cases show there are no guarantees such orders will be made or paid in full.   Whoever loses the case in a civil court pays the legal costs of the winner but costs orders in a tribunal are the exception rather than the rule, except in the case of “unreasonable conduct” from of one of the parties. This means a party acting “vexatiously, abusively,…

Summary The Employment Appeal Tribunal made the significant decision in this case that if a trade union pays the tribunal fees for members bringing an appeal, and does not expect those members to pay it back, no order for reimbursement of those fees can be made against the employer.   If an EAT appeal is successful, generally those making the appeal can recover any fees paid from the respondent if that respondent actively resisted the appeal. Almost identical rules apply in employment…

Summary This case demonstrates that the court system can provide an alternative route for an employment complaint which is outside the time limit for bringing a claim in a tribunal.   The legal principle of ‘res judicata’ (meaning ‘a matter already judged’) prevents the parties in a dispute from going to court again with issues that have already been, or could have been, dealt with in earlier proceedings. For example, a tribunal claim for unpaid notice pay which fails cannot then be…

Summary This case provides further guidance on whether employees working abroad can bring claims in a UK employment tribunal under the Employment Rights Act 1996. The tribunal had to decide whether an Australian working in Australia for a British company was an ‘expatriate employee’ or whether the employment relationship had a sufficiently strong link to Great Britain to provide her with employment protection.   Lodge was employed by a British not-for-profit company. Shortly after starting…

Summary This case confirms that when making awards for injury to feelings in sexual harassment cases, tribunals have to consider the effect of the harassment on the victim, not what they themselves think of the behaviour. They must also follow guidelines on how high or low the award should be. Facts Ozog, a waitress brought claims for sexual harassment and sex discrimination. The head waiter had kissed her on the hand, and had subsequently taken off his belt and approached her asking “Do…

Summary This EAT decision clarified the legal test for whether foreign nationals are able to bring unfair dismissal discrimination and whistleblowing claims in a UK employment tribunal.   Here a US employee working in the UK was not entitled to employment and equality rights.   Both the Employment Rights Act 1996 and the Equality Act 2010 do not specify their geographical scope. However the case of Serco v Lawson (2006) did provide guidance on the legislation’s reach by setting out…

Summary Tribunals can order employees or employers to pay a deposit into the court where it looks like the claim, or the employer’s defence, has little prospect of success. Here the Employment Appeal Tribunal (EAT) had to consider the effect of new rules on deposit orders.   Wright was employed by Nipponkoa as a marine underwriter. He brought tribunal claims for race discrimination and whistleblowing. At a preliminary hearing, it emerged that his claim was made up of 11 individual…

Summary Here the Employment Appeal Tribunal had to decide whether an employment tribunal was wrong to award costs against a claimant and her representative when she brought multiple claims against her employer that were not supported by evidence.   Costs awards at the employment tribunal continue to be relatively rare, but an employer’s appetite for applying for costs may well be heightened in the face of particularly serious and unfounded allegations. This case serves as a useful reminder…

Summary A member of airline cabin crew, unfairly dismissed following allegations that his behaviour was a threat to safety, had his reinstatement order overturned after an appeal from his employer.   It is very rare in unfair dismissal cases for an employment tribunal to make an order compelling an employer to re-employ the employee. Tribunals usually take the view that the trust and confidence in the employment relationship has broken down to such an extent that ordering the employer to…

Summary Wrong advice from employer about employment tribunal time limits. Facts Andrews worked as a Nurse on a part-time basis. Her claim was in relation to pension arrangements: Up to 1988 the NHS pension scheme was compulsory for full time employees, and part time employees could not join the scheme. From 1988-1991 the pension scheme was optional for full time employees, but part time employees still could not join the scheme. From 1991-2005 (when the claimant joined the scheme)…

Summary In this case, the EAT had to consider whether the secret recordings an employee made of adjournment discussions at disciplinary and grievance hearings could be admitted as tribunal evidence. Facts Gosain lodged claims alleging sexual harassment, sex discrimination and constructive dismissal. Prior to her resignation, she attended a grievance hearing and a disciplinary hearing. She recorded conversations connected with those hearings both ‘public’ (remarks made in the meetings…

Summary Following the introduction of fees payable for employment tribunal claims, Unison applied for a judicial review, arguing that fees would make exercising individual employment rights difficult and were also discriminatory.   Fees became payable for employment tribunal claims from 29 July 2013. In this case the High Court had to consider an application by the trade union Unison for a judicial review of their introduction. The court’s full decision has recently become available.   A…