Out of time at tribunal but claim goes on
Nayif v High Commission of Brunei Darussalam
Claimants have a three-month time limit to notify Acas that they want to bring a discrimination claim in the employment tribunal. Some employers will watch the clock tick down and, once those three months have passed, feel pretty safe in the knowledge that they are not going to face a claim.
But there is one important fact to bear in mind: the tribunal is not the only forum for employment-related claims. Some cases can be brought in the county court or high court where longer limitation periods apply. That is what has happened in Mr Nayif’s situation. It led to an interesting decision about his right to pursue a claim on the same facts as one which had already been dismissed by a tribunal.
Mr Nayif alleged that he had been bullied and harassed at work and he had suffered mental ill-health as a result. The tribunal dismissed his race discrimination claim because it had been brought well outside the three-month time limit. He went on to issue a personal injury claim in the High Court. The facts of that claim were the same, but this time he alleged negligence and breach of contract.
Could the claim proceed? It was argued that the issues had already been dealt with by the tribunal – his claim had been dismissed – and so couldn’t be heard again.
The Court of Appeal held that the tribunal hadn’t decided the issues in the case, only whether or not the claim could be brought. A claim being dismissed by the tribunal for being brought too late can be distinguished from a claim that has been withdrawn or settled. In this case, Mr Nayif could bring his claim in the High Court.
The question of a dismissed tribunal claim being followed up by a claim in the courts is an interesting one, and one which will come down to whether or not the tribunal had decided issues in the case. But it’s the general and overarching potential for claimants to reshape their legal claim to benefit from different rules in the county and high courts that also needs to be highlighted. Remember that much longer limitation periods apply in these courts. It means employers need to be alert to the possibility of time-barred tribunal claims being alive and kicking in one form or another elsewhere.
Fit for Work?
By May this year, we should have a fully-functioning Fit for Work (FFW) service which aims to give clarity on employees’ ability to do their jobs.
Offering free occupational health assessment and return to work plans, FFW will be available to employers and employees as well as GPs, and it looks set to be a useful resource in the case of employees who have been on sick leave for four weeks or more. There will be two elements: a website and telephone line advice service; and a referral service. And it is intended to complement, rather than replace, employers’ existing occupational health services.
If you’re having issues with absence levels, contact us to discuss how we can help.
Acas Code revised
It may not strike you as momentous, but a change to the Acas Code could well change the way you handle workers’ requests to be accompanied at disciplinary and grievance hearings.
It’s in response to Toal v GB Oils in which the Employment Appeal Tribunal held that, in relation to disciplinaries and grievances, where a worker “reasonably requests to be accompanied at the hearing”, there is now no reasonableness requirement relating to the identity of their companion. In other words, a worker doesn’t need to be reasonable in choosing the person they’d like to attend the meeting with them – they can choose someone who will shout, stamp and scream, or who the employer might not want to attend for some other reason.
The Toal case found that workers have the right to be accompanied by any companion from one of the categories in section 10 of the Employment Relations Act 1999 (trade union officials, certified union reps and fellow workers). That, it seems, is now the only requirement, but it’s not all as straight forward as that, so if you’d like more advice contact us to discuss how we can help.
Appeal decision effective when made
Salmon v Castlebeck Care and Danshell Healthcare
Ms Salmon was dismissed before a TUPE transfer. The HR Director of the incoming employer heard her appeal and decided, post-transfer, that the dismissal was unsafe. However, she didn’t tell anyone about this or decide to reinstate Mrs Salmon. Instead she instructed an HR consultancy to negotiate a settlement – but that didn’t happen.
Could Ms Salmon bring a claim against the new employer? The tribunal held that she could not; the transferee was never her employer.
Ms Salmon appealed, arguing that because her appeal against dismissal had been successful, that had the effect of instantly reviving her contract. It meant that she had been employed immediately before the transfer and her employment transferred to the transferee (so she could claim against that company).
The Employment Appeal Tribunal agreed. The employment contract had been revived. There was no need for an express decision as to reinstatement to be taken, or for the appeal decision to be communicated. Once an appeal against dismissal has been upheld, and unless the employment contract says otherwise, employment is automatically revived.
The point about a contract being automatically revived is an interesting one. There is a distinction to be drawn between Ms Salmon’s scenario, where the crucial element was the decision to uphold her appeal against dismissal, and a situation involving a dismissal decision itself. A decision to dismiss must be communicated in order to take effect. But that’s not the case when it comes to appeal decisions. Something to be aware of, and which could have a significant bearing on a person’s employment status.
EXOL Lubricants v Birch
The claimants were delivery drivers. They lived near in Manchester but their depot was in Wednesbury. EXOL arranged secure parking for their HGVs in Stockport near their homes because of the cost to the employees of commuting. This became a term of their contract, which also said that their place of work was the depot in Wednesbury. Time spent travelling between Stockport and Wednesbury was treated as part of their working day.
EXOL gave notice to terminate the secure parking arrangement when it decided it was no longer affordable. The employees were unable to agree a compromise with EXOL and were dismissed. EXOL argued that these were fair redundancy dismissals, claiming that Stockport was the employees’ place of work and its requirement for lorry-driving there had diminished. The employer had ceased to carry on business in the place in which the employees were employed.
The tribunal found for the claimants. It held that their place of work was the depot and not the place where they parked their HGVs.
The Employment Appeal Tribunal (EAT) agreed. Wednesbury was the correct place of work. The claimants had a close connection with the depot. That is where they had to take their lorries every day; it was where their instructions came from and to where they reported. There was no redundancy at the depot and so their dismissals were unfair.
This case raises important points about the meaning of “place of work” in cases involving mobile workers including delivery drivers. In deciding where their place of work is, the first port of call is the contract, then the connection held between the employee and their depot or head office.
Another option in this case would have been for the employer to justify the dismissals by reason of “some other substantial reason”, based on the employer and employees having been unable to agree a new arrangement. The EAT commented that, had that route been taken in this case, other considerations may have applied.
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