See you in court
See you in courtOn 1 May 2001 in Personnel Today Comments are closed. OH professionals may well be called as witnesses in employment tribunals.Make sure you are well prepared and do not be fooled by their apparentinformality. By Linda Goldman and JoanLewis Employment tribunals were created in 1964, originally to hear appealsagainst certain expenses imposed by statutory bodies during industrialtraining. Their functions quickly grew to provide rapid, inexpensive andinformal access to justice in disputes about employment legislation. The overwhelming number of current cases means that rapidity is notnecessarily achieved. Many claims have little substance and some defences aredoomed to fail, so new rules (already in existence in Scotland) are planned toincrease the amount of costs that tribunals can award against unmeritoriousparties. Informality exists in comparison with civil and criminal courts butrepresentation is the norm, whether by a barrister, solicitor, consultant orfriend (paid or otherwise). Witnesses give evidence on oath or affirm but allparties remain seated during the proceedings. Employment tribunals are courts at the lower end of the judicial spectrum.They consist of a chairman who is a solicitor or a barrister and two laymembers with experience from management and shop floor sides of industry,respectively. Their main jurisdiction is in connection with employment disputes arisingout of allegations by individual applicants against their employer, the respondent.The applicant may be an employee but temporary workers can bring complaintsunder discrimination law and breaches of regulations. The ceiling on claims for unfair dismissal is £51,700 at present. Breach ofcontract claims arising on termination of employment are limited to £25,000.Discrimination claims are unlimited in value. Eligibility Many applicants do not require a qualifying period of employment to go tothe employment tribunal as it is discriminatory to reject a job candidate onthe grounds of race, sex or disability. Acts of discrimination or breaches ofstatutory requirements give rise to an instant qualification for employmentprotection and compensation. These claims also qualify people for awards forhurt feelings. Unfair dismissal claims depend on employees having completed 12months’ qualifying service. The role of OH personnel Occupational health personnel or employers are liable to be involved inmatters relating to the termination of employment and therefore bring or defenda claim for unfair dismissal. They may also be required to attend as witnessesto give evidence about fair procedure in ill-health dismissals, disability orhealth and safety cases. Increasingly, nurses or doctors are witness both to fact, saying whatactually happened; and/or as experts giving an opinion as to whether procedureswere adequate. In the latter instance, in a disability discrimination claim,for example, the tribunal may need to hear why a person was considered unfit todo a particular job and why reasonable adjustments could not have been madefrom the medical point of view. Appeals The losing party may appeal to the Employment Appeal Tribunal provided thereis strong argument that the decision is wrong in law, perverse on the facts orperhaps biased in favour of one side. The EAT’s filter system only allows casesto proceed where the appellant can put forward a strong legal argument (whichis not necessarily the same as having any prospect of success). Furtherchallenges can be mounted to the Court of Appeal or House of Lords if animportant point of law is involved. An appeal may result in a case beingreferred back to a differently constituted employment tribunal to deal with thecase or one aspect of it anew. Employment tribunals also hear appeals against non-discrimination noticesfrom the Equal Opportunities Commission and the Commission for Racial Equality,to be extended to Disability Rights. Occupational health personnel may beinvolved in the further appeal function of employment tribunals in respect ofimprovement or prohibition notices issued by the Health and Safety or LocalAuthority Inspectorate. Deadlines are strictly enforced Applicants who do not comply with strict time limits for claiming will getnothing unless they can sue a representative for negligently missing adeadline. Time limits vary according to the type of case and should beconsidered urgently. This is useful advice for employers, who can begin aninvestigation that might avert proceedings, and for employees who can amassevidence and assess their prospects of success. Unfair dismissal has a strict time limit of three months. So, a person whoseemployment terminated on 1 May 2001 must ensure that an application is receivedby the tribunal by 31 August 2001 unless it was not reasonably practicable todo so. An earthquake or other catastrophic event might prevent adherence to thetime limit, for instance. Awards are subject to deductions for contributory conduct on the part ofapplicants. They require the dismissed or otherwise offended persons to haveattempted to mitigate their loss and will be made, in respect of loss ofearnings, for such a period as is just and equitable. Concise and relevant evidence Whereas professional representation often shortens proceedings,unrepresented applicants have usually had a few months of obsessive involvementwith their cases, reliving and reciting in hugely unedited form the content oftheir witness statements, including details of their cases which are, alas,peripheral to the decision which the tribunal has to make. The tribunal is nota psychotherapy session, nor is it an organ of vengeance. It will deal justlywith the complaint presented to it, determine the issues and consider whether areasonable employer would have acted in the way the respondent employer did. Itwill be helped by concise and relevant evidence. In carrying out its functions, the tribunal expects the truth, the wholetruth and nothing but the truth. From time to time, the truth hurts but thatshould have been established earlier. Cases are now prepared to strict timetables which include the parties disclosingdocuments to one another well in advance of the hearing and exchanging witnessstatements. There are no film-style surprises in employment tribunals. Eachparty is well prepared to challenge each other’s evidence but that challengeshould not be by bending the truth. Liars need not only long memories but goodones and need to share those memories with others of like minds. Which bringsus from the realms of perjury to conspiracy and, perhaps, another article sometime in the future about life behind bars. Linda Goldman is a barrister at the civil chambers of Bernard Pearl,Lincoln’s Inn. She is head of training and education for ACT Associates &Virtual Personnel. Joan Lewis is the senior consultant and director of ACT Associates and VirtualPersonnel Case round-upOH personnel as expert witnessesForth Ports Authority v Lorimer , Court of Session, IDS Brief 625(1998), p14 L explained that he had a drink problem when he was found, in breach ofcompany rules, to be under the influence of alcohol while driving a crane. Ftelephoned L’s GP who said that L was depressed but did not have a drinkproblem. L was dismissed. The EAT upheld the tribunal’s finding that theemployer should not have dismissed L without obtaining a medical report. TheCourt of Session said that the main consideration was whether L was under theinfluence of alcohol. Details of the depressive illness were not of materialsignificance in assessing the misconduct, “the essence of which was knownand undisputed”. The employer was not under a duty to investigate further.OH personnel and health and safety dutiesHealey v Excel Logistics, EAT 20 May 1998, IDS Brief 622, p5 A health and safety representative is protected from unfair dismissalarising out of health and safety matters even if employed for less than 12months. He/she is therefore currently entitled to a minimum basic award of£7,200 if successful. Here, H was employed from 1995 and became health andsafety representative in 1996. H was concerned about an entry in the accident book of a supermarket where acolleague had been injured when making a delivery. He made several approachesto management of the supermarket about the accident report. His employer deemedthat to be gross misconduct and he was dismissed within a year ofemployment. The tribunal held that H had gone on a clandestine mission that did not fallwithin the Safety Representatives and Safety Committees Regulations 1997because the supermarket was not under the control of his employer. EAT saidthat the tribunal had failed to consider that the inspection was carried outunder Regulation 4(1)(a), enabling a health and safety representative toinvestigate potential hazards in the workplace. There was nothing to supportthe “clandestine mission” set out by the tribunal and there wasnothing in the Regulations which indicated that the representative needed thepermission of the employer to inspect the accident book. The dismissal was therefore automatically unfair as he was dismissed becausehe was investigating the cause of accidents in the workplace.OH input and disability discrimination Leonard v Southern Derbyshire Chamber of Commerce, 2001, IRLR 19L suffered clinical depression for which she took medication from 1995 andwhich was exacerbated in 1997 after she was raped. She went on sick leave inMarch 1998 but her condition worsened following her brother’s death in August1998 and by her dismissal in October 1998, which she claimed was unfair byreason of disability discrimination. The agreed medical evidence was the GP report stating she had a long-termmental impairment. In determining whether the impairment had a substantialeffect on her normal day-to-day activities, the tribunal considered theGuidance and found that, taking each heading of affected activities as a whole,there was no substantial effect. They were impressed that she was managing to cope. EAT said that theapproach was to focus on what the applicant could not do, rather than what shecould do, referring to Paragraph C6 and 7 of the Guidance, indicating that animpairment may indirectly affect abilities under the set headings. The tribunalwas entitled to take account of her abilities but should not have done so atthe expense of her disabilities. It had not taken account of the fact that shehad not been able to work since 1998 and her coping strategies had failed. The EAT decided that the applicant was disabled within the meaning of theAct. The case is therefore remitted to the tribunal for determination ofwhether the applicant was dismissed by reason of her disability and whether anyreasonable adjustment could have been made to avert the dismissal. Previous Article Next Article Related posts:No related photos.