11 September 2013

Delay by the Tribunal Service: Fair hearing an impossibility

For those of us that deal with the Employment Tribunal (ET) on a regular basis it can be very much described as a love/hate relationship. Being a case worker at the ET and dealing with a constant procession of disgruntled claimants, respondents, not to mention their frantic lawyers, is no easy task. This is particularly true of late in light of the recent administrative backlog that has resulted from the stampede of claims at the end of July following the introduction of ET fees, upon which we have previously reported.

It is no surprise then that the ET, like every other large government funded entity of its kind, does from time to time make clerical errors. Often the resulting chaos of such mistakes is minor and capable of correction once discovered.

However a recent (and in the interest of balance very rare) tribunal mistake was reported in the case of Elliott v The Joseph Whitworth Centre Ltd. Here Mr Elliott lodged his claim against the respondent in April 2010, however it did not reach it until February 2012. The reason for this was continued errors on the part of the tribunal administering the claim in addition to Mr Elliott's representatives failing to make enquiries as to the progression of the case once submitted. The former is perhaps to be expected on occasion, though not for such a length of time, the latter from professional perspective is totally unforgiveable.

Once the error was realised and the claim was received in 2012, The Joseph Whitworth Centre applied for the claim to be struck out on the simple basis that a fair hearing would now be impossible. It argued that the extreme delay meant that the memories of the relevant staff would now have faded, making any evidence they could provide at best rather shaky.

The tribunal granted this application and struck out the claim. Mr Elliott appealed the decision arguing that the tribunal had not heard the evidence of the witnesses and so the conclusion that the relevant memories had faded was untenable. The Employment Appeals Tribunal (EAT) however did not accept this argument with it stating that the Judge at the original ET was correct and that it was pre-eminently a question of fact for a first instance Judge to decide what constitutes a delay and how long before such becomes inordinate.

So what of Mr Elliott? While his tribunal claim was struck out, the EAT did quite rightly point out to him that while that claim was no longer possible, his remedy did in fact lay elsewhere. This of course meant that his recourse was against his legal representatives via a professional negligence claim.

Conclusion

It is critical for employers and employees to ensure that they actively engage and participate in proceedings. The simple way to do this is by making certain that regular updates are provided to you by your legal representatives. It is important to note that such a huge oversight is extremely rare in practice; a good representative will generally check progress on a case as routinely as having their bowl of cereal on a morning.