Employment Tribunals vs Civil Courts: Crossover and Distinctions

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1 Employment Tribunals vs Civil Courts: Crossover and Distinctions Diarmuid Bunting Barrister St John s Buildings March 2017 St John s Buildings 1

2 Employment Tribunals vs Civil Courts: Crossover and Distinctions As employment lawyers, our starting point must be as follows: Why go to the civil courts at all, rather than the Employment Tribunal, when we are more familiar with the (usually) cost neutral, procedurally sensible, user-friendly ET, which enables us to avoid all use of the White Book and the Civil Procedure Rules? However, one ought to bear in mind that the legal principles in the civil courts are usually the same as the ET. Contractual principles are often the foundation of the types of civil claims employment lawyers may find themselves conducting. Likewise, many other relevant concepts, like those under the Equality Act and (possibly) the Protection from Harassment Act will be familiar to employment lawyers. Likewise, negligent misstatement cases can arise from negative employment references, which often follow employment disputes. Although these are claims in tort (the compensatory principles of which we frequently apply to employment cases), they are not necessarily complicated. Restraint of trade cases are heard in the High Court. These can dovetail with providing employment advice/representation to employers and employees. For the lawyer, the benefits can include adding another string to your bow, increasing billing, and just being a general office clever-dick. So, what is the downside? - CPR? March 2017 St John s Buildings 2

3 What s the Difference? Court fees: As an aside, the fees payable in the civil courts used to be less than those payable in the ET, in respect of contractual claims for a few thousand pounds. This is not necessarily the case any longer. In relation to any particular money claim, the lawyer may consider pages 5-7 of HMCTS form EX50. The relevant bracket can then be compared to the payable to the ET in respect of contractual (Type A) claims. Cost recovery: A claimant with a particularly strong claim, e.g. notice pay over 10,000 (thus avoiding the small claims track and the relatively neutral costs regime therein) may wish to recover their legal costs as well as their contractual losses. Clearly, in the event of a strong case, the additional threat of costs can assist one s negotiating position in settlement negotiations, and can make settlement more attractive to all parties. Time limits: The civil courts offer much more forgiving limitation periods. This can enable settlement to be explored more fully. Or it can serve as a way out if limitation has been missed in the ET. In the ET, most common claims, apart from those for redundancy payments, have a 3-month limitation period. In the civil courts, breach of contract claims can be brought within 6 years*, like harassment claims and tort/negligence claims (other than for personal injury). Defamation claims allow a year*. Non-employment discrimination claims under the Equality Act usually have a 6-month* limitation period. [*NB: all of the above periods are actually one day less than stated]. March 2017 St John s Buildings 3

4 Relevant Types of Claims in the Civil Courts Contract claims: The ET Extension of Jurisdiction (England & Wales) Order 1994 grants ETs the right to hear claims for breach of contract arising from the contract of employment or another contract connected with employment. Restrictions on ET contractual claims: - Can only be brought by employees (the narrower definition, under s230 ERA); o Note that workers can bring wages claims under ERA; - Must be for a sum not exceeding 25,000 (Fraser v HLMAD: C can t sue for some in ET and then seek balance in High/County Court he will be estopped from the second set of proceedings); - Employment relationship must have ended; o [in suitable claims, this can be avoided by issuing a wages claim in ET, subject to the above caveats]; - The breach must be outstanding at the date of termination for breaches after termination, the ET cannot hear the matter; - Contractual claims for unliquidated damages cannot be heard in ET (e.g. pension loss or share scheme that has yet to precipitate, [loss of use of a company car?]) the ET can only hear claims for a quantifiable sum; o It is not a bar if the calculation is difficult, but see Hull CC v Schofield & ors inaccurate re-grading was not a claim for a liquidated sum, as there was judgment to be applied to which sum would fall correctly payable. Harassment: Claim arising from the Protection From Harassment Act 1997 are quite distinct from harassment complaints under the Equality Act Section 3 of the Protection from Harassment Act 1997 provides a remedy in the civil courts for victims of harassment contrary to section 1 of the Act. Section 1 states that a person must not pursue a course of conduct which amounts to harassment of another and that he reasonably knows or ought to know that it amounts to harassment of the other. A course of conduct cannot arise from a single incident. March 2017 St John s Buildings 4

5 Harassment is not defined within the 1997 Act. The Oxford Dictionary online defines to harass as: to subject to aggressive pressure or intimidation and/or to make repeated small-scale attacks on. [Under the Equality Act 2010, it is defined as conduct which has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment [for the victim], albeit that definition relates primarily to workplace claims]. Note that it cannot be taken for granted that each incident within the alleged course of conduct will amount to harassment under the 1997 Act. There is a boundary between unattractive and unreasonable behaviour and that which is oppressive and unacceptable. Only the latter, oppressive and unacceptable behaviour, will give rise to liability under the 1997 Act, and what amounts to unacceptable behaviour will depend upon the circumstances of the case. In Conn v The Council of the City of Sunderland [2007] EWCA 1492, it appeared that the Court of Appeal imposed an additional burden on a Claimant, in requiring him to prove that the misconduct complained of must be of an order which would sustain criminal liability. However, in the subsequent case of Veakins v Kier Islington Limited [2009] EWCA Civ 1288, the Court of Appeal made it clear that what is required is to establish that the conduct is oppressive and unacceptable (i.e. not necessarily criminal), crossing the line from conduct which is the ordinary banter and badinage of life (per Baroness Hale in Majrowski). Also in Veakins, Kay LJ suggested that liability under the 1997 Act would occur in extraordinary cases. In addition, section 3(3) of the 1997 Act includes some exceptions to the civil remedy, including if the course of conduct complained of was pursued for the purpose of preventing or detecting crime and/or if the course of conduct was reasonable in the circumstances. Regarding procedure, if a claim is to be pursued, a letter before claim must be sent in accordance with the CPR s Practice Direction on Pre-Action Conduct (discussed later). It should be borne in mind that harassment cases under the 1997 Act are allocated to the multi-track in the civil courts (see below). Therefore, the costs may be significant. It is also significant that, under CPR Rule 65.28, proceedings under section 3 of the 1997 Act must be commenced under the Part 8 procedure (rather than the normal Part 7 procedure). Importantly, CPR Part 8 requires that all of the evidence the Claimant will seek to rely upon at trial must be filed with the claim form (CPR 8.5). Therefore, as far as preparing a Claimant s case is concerned, harassment cases should be front-loaded. This rule is probably more useful if you are defending a harassment action than if you are pursuing one. March 2017 St John s Buildings 5

6 Non-employment discrimination claims: Section 114 of the Equality Act permits various civil claims for breaches of the Equality Act 2010, including in respect of: - Services & public functions; - Premises; - Education; - Associations; But not in respect of Part 5 of the 2010 Act, which relates to employment. The concepts governing prohibited conduct, e.g. under s13-21 ( discrimination ) and (victimisation & harassment), apply similarly to the non-employment parts of the Act as they do to the more familiar elements under Part 5 (particularly s39). The potential Defendants under Part 3 are service providers : namely anyone who is concerned with the provision of services to the public or a section of the public. This is rather broad, including functions like: - Public transport; - Planning; - Parking; - Policing (Finnigan deaf suspect s premises were searched without interpreter); - Prisons (e.g. failure to make adjustments) - Banking (Allen v RBS inaccessible ATMs) - Hotels (Bull v Hall & Preddy double rooms only for heterosexual married couples). Discrimination (under ss13-21) can occur by D refusing to provide the service to C, or not providing the service of the usual quality to C or not providing the service in the usual manner or on the usual terms. Likewise: - Part 4 relates to housing; - Part 6 relates to education: o Encompasses schools, further & higher education establishments and qualifications bodies; o Covers issues like admissions, exclusions, uniform/dress/hair, reasonable adjustments; March 2017 St John s Buildings 6

7 o [Note that some cases, i.e. those involving specific educational needs or disability discrimination (only in schools ) are brought in the Special Educational Needs & Disability Tribunal]; - Part 7 of EqA relates to associations; o Associations regulate membership by their association s rules; o They have at least 25 members; o They are not trade organisations; o They are not clubs run by groups of friends etc, like book clubs; o Reasonable adjustments obligations apply; o Associations can discriminate on grounds of only one protected characteristic! Injunctions against disciplinary action: Not very common. Only suitable for high value clients. May arise if the disciplinary procedure is contractually binding, and is breached. Suspension (unpaid) or demotions are likely to be in breach of contract if not expressly provided for in the contractual terms. Helpfully, seeking an injunction to pre-empt a breach can be pro-active, rather than reactive (like almost everything else in employment litigation). Staying a suspension and/or delaying a disciplinary hearing (Chharbra v West London Mental Health NHS Trust a case involving allegations which had been trumped up by HR, and thus a breach of an implied term of procedural fairness) are examples of the sort of injunctive relief that may be sought. Note also that cases have shown that in disciplinary matters where the result could have serious career-threatening implications, it may be possible for an employee to have legal representation in the disciplinary meeting. Kulkarni v Milton Keynes Hospital NHS Foundation Trust involved a junior doctor facing charges of professional misconduct. He was accused of inappropriately examining a patient by placing a stethoscope under her pants without her permission. The employee s request to bring a legal representative was rejected by his employer, but he argued that he should have a legal representative present as the NHS is a monopoly employer for all doctors and dentists and so if the employee was dismissed from his post as a result of the professional misconduct charges, he would not be able to find alternative work as a doctor. The Court of Appeal found that the doctor was entitled to legal representation because he was entitled to a fair hearing under Article 6 of the March 2017 St John s Buildings 7

8 European Convention on Human Rights and because he would not be able to find alternative work if dismissed as a result of the disciplinary hearing. Restraint of Trade: This topic will not be covered in the present seminar. March 2017 St John s Buildings 8

9 Civil Procedure Whirlwind Tour Pre-action conduct: The Practice Direction on Pre-action Conduct applies. A letter before claim should set out sufficient information for the intended Defendant to appreciate and consider the issues (without them having to ask for further information). Facts must be set out clearly. Include dates. The legal basis of the claim should be made clear. Key documents should be attached, e.g. contractual documents, documents demonstrating the basis of calculations, relevant policies, possibly correspondence. Failure to comply can have costs consequences. The civil courts are (usually) more concerned with substantive, rather than trivial, technical breaches. The Defendant will acknowledge receipt within 14 days and send a full response within a reasonable period, also attaching relevant documents. If the matter does not settle, the parties may at least have been able to narrow the issues and get a feel for the other side s case. If you try to settle pre-issue and want your costs (assuming you are for the Claimant) you must ensure this is included in your settlement proposal/agreement. Starting proceedings: The Claimant will file and serve his claim form, which will be fully compliant with CPR Part 16. Ensure that service is done properly. Send the claim form to the correct name at correct address of the Defendant. If defending, ensure the acknowledgement of service is filed and that the Defence is filed on time. Reply to each allegation admit, deny, put to proof and aver. Case management (including allocation): Case management hearings are common in the civil courts, like in the ET. Case management is more robust. Costs consequences follow failure. Case management orders are more than mere aspirations. Cases are allocated to a track, according to value, complexity and other relevant matters: - Small claims track (usually for claims worth up to 10,000); - Fast track (> 10,000 but no more than 25,000); March 2017 St John s Buildings 9

10 - Multi-track (> 25,000). Costs case management: What is the most important thing to remember in any multi-track case? Do not forget to file your costs budget on time. It must be filed 21 days before the first case management conference, or on whatever date is ordered. (In cases where a party s budgeted costs do not exceed 25,000 or the value of the claim as stated on the claim form is less than 50,000, the parties must only use the first page of Precedent H). Applications: During the case management stage of proceedings, the earlier the better, either party may make an application to the court, e.g. for strike out or summary judgment on all or part of the claim/defence. Applications are made on an Application Notice (form N244). A fee, usually 155 is payable upon application. All factual matters, and documents, which are to be relied upon in any application, must be annexed to the application notice and fall under its statement of truth. Try to avoid putting lots of helpful factual detail in your instructions, which is not in your witness statement or application notice. Evidence: Strictly speaking, every fact relied upon in a civil trial must be mentioned (or referred to) in the witness statements. Placing a document in the bundle without referring to it can be dangerous, unless it is intended only for use in cross examination. Part 36 offers: These can be very helpful in settling civil claims. If the Claimant makes an offer and the Defendant rejects it, the Claimant will be able to recover greater costs and compensation if he goes to trial and beats his offer. If the Defendant makes an offer and the Claimant refuses it, but then fails to beat it at trial, the Claimant will not get his costs from when the offer expired, and the Defendant will be able to recover its costs from that date. Refusing a reasonable part 36 offer can make a victory at trial rather empty, particularly for the victor s solicitors. In conclusion: If you are unfamiliar with Civil Procedure, and intend to issue a claim in the civil court, do not be afraid. But do have a civil litigator colleague or counsel on hand to keep you right, if necessary. March 2017 St John s Buildings 10

11 The law may be very familiar to the unwary employment lawyer, but the procedural side of matters can be more taxing. Nonetheless, the civil courts offer a viable source of work for employment lawyers seeking to spread their wings and/or to offer a broader range of services. Diarmuid Bunting March 2017 clerk@stjohnsbuildings.co.uk March 2017 St John s Buildings 11