Chris Wilkinson of Expert HR Solutions Ltd has noticed a rise in threatened and actual Tribunal cases following defeat in the Supreme Court at the hands of Unison in 2017 of Tribunal Fees. He continues that he has also noticed that Employers are increasingly turning to Settlement Agreements or ACAS COT 3 Agreements almost as a first line of defence on the basis that it is cheaper and less time consuming than defending the case. Whilst both of these routes have their merits there are alternatives he says.
Back in 2001 Lord Bingham defined ‘vexatious litigation’ as follows: “The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court…”
While an employment tribunal’s ability to restrain and deter vexatious litigants has its limits, there are some practical steps employers can take, including:
- If a claim has been received and you suspect the claimant may be a serial litigant, check whether they have made similar claims before all recent tribunal judgments are now online.
- Check whether they have been subject to the attorney general’s ‘vexatious litigants’ list or a civil restraint order, preventing them from issuing claims.
- If the claim appears weak and without any reasonable prospect of success, highlight this on the ET3 ‘grounds of response’ and apply for a strike out or a deposit order, whereby the tribunal can order the payment of a deposit of up to £1,000 as a condition for allowing the claim to proceed.
- Consider issuing a costs warning letter, putting the claimant on notice that you will apply for costs if they proceed with the claim and are unsuccessful.
The Employment Tribunal Rules of Procedure provide for an initial ‘judicial sift’ stage, which allows a judge to review a case based on the ET1 and ET3, and to strike out the claim (or response) where it has ‘no reasonable prospect of success’, which would apply to vexatious claims. The rationale is to weed out weak and meritless claims at the earliest possible stage.
In practice, few claims are dismissed at this initial stage and the hurdle to have a claim struck out is high. Employment judges have tended to take a cautious approach to striking out claims. In addition to the power to strike out claims at the initial stage, the employment tribunal can also strike out claims at any stage of the proceedings on the grounds that the claim (or part of it) is “scandalous or vexatious or has no reasonable prospect of success”; however, as with the initial judicial sift stage, this remains a high hurdle to overcome.
When it comes to costs, the employment tribunal has tended to show more willingness to award costs against litigants where their conduct is “vexatious, abusive, disruptive or otherwise unreasonable”. If you would like advice on this or any other Employment issue why not give us a call on 01202 611033, the initial call is free.
Do you have employees who are regularly travelling to sites other than their contracted normal place of work asks Chris Wilkinson from Expert HR Solutions. If so you need to read this as a Tribunal has made a ruling that could mean you need to review your Contracts of Employment and payment practices. The case in question involved a Gas Engineer but the ruling would apply to anyone travelling regularly.
The Tribunal ruled that the heating engineer who resigned in September 2019, was unfairly constructively dismissed after the company refused to pay him overtime for travelling between jobs. Furthermore it found the failure to pay this “amounted to a fundamental breach of contract and to a fundamental breach of the implied term of trust and confidence in the engineers’ contract of employment with the company”. Because this was the principal reason for his resignation, it amounted to a wrongful and unfair constructive dismissal.
On joining his conditions of employment included clauses that covered the fact he would be required to travel to other locations as reasonably required in the performance of his role, and he would be expected to work 45 hours a week. In fact he spent the majority of his time at locations other than his specified “normal place of work”, so predominantly at customers’ premises and travelling to suppliers to pick up parts. Initially the jobs were “fairly local” and that it was “expected he would have approximately 30 minutes of travel time, which was often incorporated into contractual hours” and that it “wasn’t uncommon during summer months to have slightly earlier finishes”.
Over time the distance of travel to jobs increased so that it was known for me to travel up to five to six hours per day in addition to his contracted hours. The company had no formal travel policy but in 2018 the unofficial rules were changed so that the first and last hour of travel became unpaid. The owner subsequently clarified that travel of more than one hour would be paid.
In June 2019, the general manager, was asked by the owner to investigate a number of concerns about the engineer. This included alleged refusal to work his contractual hours, falsifying time sheets, dragging out jobs and not completing “reasonable requests of work tasks and an investigatory meeting was set up. The engineer formally submitted a grievance that included that he was not paid for “all the overtime” he incurred while travelling between jobs; that the company had reduced his pay from “double time to time and a half”; that he was “always given the job that involves the furthest distance”; and that he had been undermined by the owner while at work. At the official hearing all of the points of grievance were rejected, the engineer appealed but was subsequently dismissed. As a result he resigned stating that the company’s refusal to take his grievances seriously or to “reduce the excessive hours (including travel time)” had put his and others’ health and safety “at risk”, which had made his position untenable. He brought claims of unfair dismissal and breach of contract in relation to unpaid wages to the employment tribunal.
The tribunal ruled his complaint of breach of contract because of unpaid overtime wages was well founded. Additionally, it ruled Holloway was wrongfully and unfairly constructively dismissed by the company because of the travel time wage dispute.
Chris says that such disputes are not uncommon, particularly when hours spent travelling could push someone’s working week over the 48-hour legal maximum. If it does so, businesses must try to ensure that affected workers sign an opt-out agreement. Chris continues that the UK’s national minimum wage regulations explicitly excluded time spent travelling to and from work from the determination of what counts as working time for the purposes of pay. This means that employers can decide whether to pay for travel to the first and from the last appointment and, if so, at what rates which should be clearly set out in the employee’s contract.
If you would like Expert HR Solutions to conduct a free review of your Contracts of Employment and travel policies just give us a call on 01202 611033 and we will happily advise.
The latest statistics from the Ministry of Justice show a huge increase in the type and volume of tribunal cases received, disposed of or outstanding for October to December 2020 says Chris from Expert HR Solutions. In fact, single claims are at their highest level for some years up 25% compared to the same period in 2019. There has also been a sharp rise in multiple cases (82%) brought and an increase in disputes centred on working time and age discrimination. The rising number of employment tribunal cases was the result of the increase in unemployment and altered working conditions brought on by the effects of the Covid-19 pandemic, according to the Ministry of Justice. It projected that an even steeper rise in cases may occur when furlough ends in September.
Employment tribunals concluded 14,000 claims during October to December 2020, a 24% increase on the same period in 2019 mostly due to multiple claims. The figures also showed that working time claims replaced unfair dismissal as the most common claim. As well as an increase in the number of cases the average wait time between an employment tribunal receiving a claim and it being heard hit 323 days during the peak pandemic months of April-September 2020, up from 284 days pre-Covid. In fact, there are 44,000 outstanding cases which is higher than the previous total of 36,000 in Q2 of 2009/10. This is largely driven by single claim receipts being higher than disposals. Chris says, this should be a wake-up call to all Employers to make sure they seek qualified advice if in any doubt about what they must do to stay compliant with the ever-changing employment law. If you want a health check on your compliance with employment law why not give us a call on 01202 611033, it’s free.