If at first you don’t succeed, then try, try and try again
Following the introduction of employment tribunal fees in July 2013, tribunals no longer present cheap, easy access to justice.
The introduction of fees was intended to encourage businesses and workers to mediate and settle disputes without formal recourse, lessening the financial burden on the tax payer and it was denied that their introduction would limit access to justice.
With circa an 80% reduction in claims being pursued in the tribunals, it is possible to adopt a very black and white view that either fees have indeed limited access to justice, or else somewhere in the region of 80% of claims were spurious. So what other options do employees have?
A recent case, Nayif v High Commission of Brunei Darussalam, is an interesting example of an employment claim that was pursued through the courts instead of the Tribunals.
The employee was subjected to bullying and harassment for a prolonged period between 2003 and 2010 and alleged that this had caused him mental health issues. He lodged an employment tribunal claim for race discrimination, however was outside the 3 month time limit for bringing such a claim in the tribunals. He argued that the time limit should be extended in his case, but was unsuccessful.
He appealed initially to the Employment Appeal Tribunal but did not pursue the appeal. Instead, the employee decided to issue a new claim in the High Court for personal injury resulting from the treatment he had complained about in the employment tribunal, alleging breach of contract and negligence rather than race discrimination.
Ordinarily, the law prevents parties involved in a dispute from going to court again over the same issues that have already been dealt with in earlier proceedings. Accordingly, the employer in this case applied for the claim to be struck out on these grounds. The High Court agreed, but granted permission to appeal. The Court of Appeal looked at the actual substance of what had happened in the Tribunal and whether any of the issues in the case had been determined and remitted the case back to the High Court, which again refused the appeal.
The employee appealed again to the Court of Appeal, which decided there was no justification for striking out his claim on the basis the Tribunal had only considered the issue of jurisdiction in relation to the time period for presentation of the claim, as opposed the actual issues in the case. The claim was therefore allowed to proceed.
Notwithstanding the introduction of Tribunal fees, this case clearly demonstrates the creativity of employees and the fact that employers can no longer rest easy after that initial 3 month period, assuming that the employee is now out of time to pursue a claim.
For advice or assistance on any employment law related matter, please contact Lianne Payne, Head of Employment at Askews Legal LLP.
E: Lianne@askewslegal.co T: 024 76 231000
Askews Legal LLP – Solicitors in Coventry.
