Legal advice: An end to court hopping
The Court of Appeal has recently made two important decisions that will affect employers and employees alike. The first deals (hopefully once and for all) with an issue that has been ongoing for the past 12 years. Employment tribunals only have the power to hear certain categories of claim. One of these categories is where there is an allegation that the contract of employment has been broken. This would normally apply, for example, where an employee has been dismissed without being given sufficient notice.
If this type of claim is started in the tribunal, the maximum amount it can currently award in compensation is £25,000.
This can lead to a conundrum in cases where a contract claim is worth more than £25,000. On the one hand, tribunal applications are quicker, less complicated and cheaper to bring than proceedings in other courts, which are all sound reasons for bringing contract claims before them. On the other hand, there is the issue of the maximum amount the tribunal can award, and the fact that the claim may exceed that amount and therefore fall outside of the type of claim a tribunal can hear.
To try to work around this issue, and get (as far as possible) the best of both worlds, some employees have been known to start contract claims in the tribunal (and have thus benefited from their relative speed, lack of complexity and cheapness), and then, if the claim turned out to be worth more than £25,000, sued for the balance in a different court. The question was whether this was permissible in law.
A good deal of legal confusion arose around the matter, with some cases ruling that it was not possible to start off in an employment tribunal and then claim any excess above £25,000 in a different court, while other cases said that in certain circumstances it was possible to do so.
In the most recent case, an employee started a claim in the employment tribunal and was awarded £25,000. However, as the real value of his claim was £80,000, he sued again, this time in the county court, for the £55,000 balance.
The matter eventually reached the Court of Appeal providing the first opportunity for that court to give its view. This is the first time there has been binding legal authority from the Court of Appeal on the point. The court decided that it was not open to the employee to sue in both courts. The employee, having nailed his colours to the mast by suing in the tribunal court, could not then sue for the balance in a different court.
The moral here is to be sure of the value of the claim before proceeding. If it is likely to exceed £25,000 it is best to pursue the (undoubtedly more long-winded) route via the civil courts.
Protection after employment has ended
The second recent case concerns protection given to former employees. It is an established principle that, in certain circumstances, a former employee can complain about discrimination that occurs after employment has ended.
The case in point, however, rested on whether a former employee could complain if, after her employment had ended, she received detrimental treatment because she had been a whistleblower while employed. A previous case had decided that she could not, and the first two courts that heard her claim decided against her, relying on the previous case.
The Court of Appeal, however, agreed with her that she was protected even though her bad treatment happened after her employment with that particular employer had ended.
There is no doubt that this is another trap for the unsuspecting employer to watch for. The simple fact that an employee has left his service with you and moved on does not release you from liability for breaching his rights under employment law.
