Wednesday 17 September 2014

1. How to… defend a claim in the Employment and Discrimination Tribunal. Wednesday 17 September 2014 Elena Moran, Partner

2. Topics • Overview of the Tribunal Process • Reduction of compensation in unfair dismissal claims

3. Jurisdiction of the Tribunal • Statutory claims under the Employment (Jersey) Law 2003 including • Unfair dismissal • Minimum wage • Annual leave • Redundancy payments • Breach of contract up to £10,000 e.g. notice pay • Claims under the Discrimination (Jersey) Law 2013 including non-employment claims

4. Tribunal Process – Initiating the Proceedings • JET 1 • JET 2 • Strike-out applications including • Claim out of time • Applicant not an employee • Applicant works outside the jurisdiction • No contractual basis for claim eg discretionary benefit • Mediation & Conciliation – JACS • Stay due for mediation/other proceedings

5. Preparing for Trial • Case Management Hearing • Discovery • Scope of the discovery obligation • Without prejudice communications • Legal Professional Privilege • Witness statements • Bundles

6. The Hearing • Composition of the Tribunal Panel (employment & discrimination claims) • Attendance of witnesses • Opening statements • Examination in chief, cross-examination, re-examination • Closing • Judgment • Costs • Enforcement • Appeals

7. Remedies for Unfair Dismissal • Compensation – fixed scale based on basic pay • Not more than 26 weeks' service – maximum of 4 weeks' pay • 26 weeks to 1 year – 4 weeks' pay • 1 – 2 years – 8 weeks' pay • 2 – 3 years – 12 weeks' pay • 3 – 4 years – 16 weeks' pay • 4 – 5 years – 21 weeks' pay • More than 5 years – 26 weeks' pay • Re-instatement (as if dismissal never took effect) • Re-engagement on such terms as the Tribunal thinks fit

8. Reducing the Compensation Award An award of compensation may be reduced by such amount as the Tribunal considers just and equitable having regard to the following: • Complainant has unreasonably refused an offer of reinstatement from the employer. • Conduct of the complainant contributed to the dismissal (including conduct that only comes to light after the dismissal) and a reduction is just and equitable. • The Complainant has agreed to receive a payment by way of settlement of the complaint. • Complainant has been awarded a redundancy payment. • Complainant has refused an offer made before the commencement of the proceedings for an amount equal to the maximum award that the Tribunal could make.  NB must be an "open" offer. • Any circumstances that the Tribunal considers would be just and equitable to take into account.

9. Contribution Williams v Cochrane 146/2012 • Applicant was summarily dismissed from role as a domestic gardener after taking unauthorised time off work.  Applicant had a long history of difficulties at work linked to his drug and alcohol use.  Dismissed with no procedure.  Tribunal found dismissal unfair, but reduced damages by 100% on the basis that the Applicant was the author of his own misfortune and had caused his own dismissal.  • Employer still liable to pay 9 weeks wages as pay in lieu of his contractual notice period. 

10. Redundancy Payment Osmand v Dixon t/a Curves Applicant unfairly dismissed by reason of redundancy.  Entitled to a redundancy payment of 2 weeks pay.  Unfair dismissal compensation reduced by redundancy payment.  Tribunal took into account that the period of unemployment was relatively brief and was covered by the payment in lieu of notice already ordered. 

11. Offer Refused Smith v States Employment Board Respondent admitted unfair dismissal.  Applicant also had claims for holiday pay and failure to pay an agreed amount under a previous settlement agreement.  The Respondent made four offers of settlement, the last two were 24 hours apart and the final offer was made ten minutes before the hearing started. All four offers included an amount equal to the maximum that the Applicant could get for her unfair dismissal claim.  The Tribunal did not reduce the claim because of the timing of the offers and was a lack of clarity as to what was covered by the offers.

12. Just and Equitable Uwins v Le Masurier Limited • Applicant was the Group Financial Account.  She was summarily dismissed and the Respondent admitted unfair dismissal.  The Applicant brought 9 complaints to the Tribunal including 7 that had no legal basis e.g. compensation for loss of a discretionary parking place for her notice period.  She was advised by JACS that there was no legal basis for the claims.  At the Tribunal the Applicant brought to the Tribunal's attention matters that had already been conceded and paid by the Respondent e.g. notice pay.    • Before the hearing the Respondent made an open offer that exceeded what the Tribunal awarded for unfair dismissal.  • Compensation was not reduced on the basis that the Applicant refused an offer because the offer was never actually refused.  However, the Tribunal reduced the unfair dismissal compensation from £28.3k to £9.9k i.e. a reduction of 65% on the just and equitable ground. 

13. Contacts Advocate Elena Moran Partner t: 01534 601630 e: elena.moran@collascrill.com