See you in court

OH professionals may well be called as witnesses in employment tribunals.
Make sure you are well prepared and do not be fooled by their apparent
informality.  By Linda Goldman and Joan
Lewis

Employment tribunals were created in 1964, originally to hear appeals
against certain expenses imposed by statutory bodies during industrial
training. Their functions quickly grew to provide rapid, inexpensive and
informal access to justice in disputes about employment legislation.

The overwhelming number of current cases means that rapidity is not
necessarily achieved. Many claims have little substance and some defences are
doomed to fail, so new rules (already in existence in Scotland) are planned to
increase the amount of costs that tribunals can award against unmeritorious
parties.

Informality exists in comparison with civil and criminal courts but
representation is the norm, whether by a barrister, solicitor, consultant or
friend (paid or otherwise). Witnesses give evidence on oath or affirm but all
parties remain seated during the proceedings.

Employment tribunals are courts at the lower end of the judicial spectrum.
They consist of a chairman who is a solicitor or a barrister and two lay
members with experience from management and shop floor sides of industry,
respectively.

Their main jurisdiction is in connection with employment disputes arising
out of allegations by individual applicants against their employer, the respondent.
The applicant may be an employee but temporary workers can bring complaints
under discrimination law and breaches of regulations.

The ceiling on claims for unfair dismissal is £51,700 at present. Breach of
contract claims arising on termination of employment are limited to £25,000.
Discrimination claims are unlimited in value.

Eligibility

Many applicants do not require a qualifying period of employment to go to
the employment tribunal as it is discriminatory to reject a job candidate on
the grounds of race, sex or disability. Acts of discrimination or breaches of
statutory requirements give rise to an instant qualification for employment
protection and compensation. These claims also qualify people for awards for
hurt feelings. Unfair dismissal claims depend on employees having completed 12
months’ qualifying service.

The role of OH personnel

Occupational health personnel or employers are liable to be involved in
matters relating to the termination of employment and therefore bring or defend
a claim for unfair dismissal. They may also be required to attend as witnesses
to give evidence about fair procedure in ill-health dismissals, disability or
health and safety cases.

Increasingly, nurses or doctors are witness both to fact, saying what
actually happened; and/or as experts giving an opinion as to whether procedures
were adequate. In the latter instance, in a disability discrimination claim,
for example, the tribunal may need to hear why a person was considered unfit to
do a particular job and why reasonable adjustments could not have been made
from the medical point of view.

Appeals

The losing party may appeal to the Employment Appeal Tribunal provided there
is strong argument that the decision is wrong in law, perverse on the facts or
perhaps biased in favour of one side. The EAT’s filter system only allows cases
to proceed where the appellant can put forward a strong legal argument (which
is not necessarily the same as having any prospect of success). Further
challenges can be mounted to the Court of Appeal or House of Lords if an
important point of law is involved. An appeal may result in a case being
referred back to a differently constituted employment tribunal to deal with the
case or one aspect of it anew.

Employment tribunals also hear appeals against non-discrimination notices
from the Equal Opportunities Commission and the Commission for Racial Equality,
to be extended to Disability Rights. Occupational health personnel may be
involved in the further appeal function of employment tribunals in respect of
improvement or prohibition notices issued by the Health and Safety or Local
Authority Inspectorate.

Deadlines are strictly enforced

Applicants who do not comply with strict time limits for claiming will get
nothing unless they can sue a representative for negligently missing a
deadline. Time limits vary according to the type of case and should be
considered urgently. This is useful advice for employers, who can begin an
investigation that might avert proceedings, and for employees who can amass
evidence and assess their prospects of success.

Unfair dismissal has a strict time limit of three months. So, a person whose
employment terminated on 1 May 2001 must ensure that an application is received
by the tribunal by 31 August 2001 unless it was not reasonably practicable to
do so. An earthquake or other catastrophic event might prevent adherence to the
time limit, for instance.

Awards are subject to deductions for contributory conduct on the part of
applicants. They require the dismissed or otherwise offended persons to have
attempted to mitigate their loss and will be made, in respect of loss of
earnings, for such a period as is just and equitable.

Concise and relevant evidence

Whereas professional representation often shortens proceedings,
unrepresented applicants have usually had a few months of obsessive involvement
with their cases, reliving and reciting in hugely unedited form the content of
their witness statements, including details of their cases which are, alas,
peripheral to the decision which the tribunal has to make. The tribunal is not
a psychotherapy session, nor is it an organ of vengeance. It will deal justly
with the complaint presented to it, determine the issues and consider whether a
reasonable employer would have acted in the way the respondent employer did. It
will be helped by concise and relevant evidence.

In carrying out its functions, the tribunal expects the truth, the whole
truth and nothing but the truth. From time to time, the truth hurts but that
should have been established earlier.

Cases are now prepared to strict timetables which include the parties disclosing
documents to one another well in advance of the hearing and exchanging witness
statements. There are no film-style surprises in employment tribunals. Each
party is well prepared to challenge each other’s evidence but that challenge
should not be by bending the truth. Liars need not only long memories but good
ones and need to share those memories with others of like minds. Which brings
us from the realms of perjury to conspiracy and, perhaps, another article some
time in the future about life behind bars.

Linda Goldman is a barrister at the civil chambers of Bernard Pearl,
Lincoln’s Inn. She is head of training and education for ACT Associates &
Virtual Personnel.
Joan Lewis is the senior consultant and director of ACT Associates and Virtual
Personnel

Case round-up

OH personnel as expert witnesses
Forth Ports Authority v Lorimer [1992], Court of Session, IDS Brief 625
(1998), p14

L explained that he had a drink problem when he was found, in breach of
company rules, to be under the influence of alcohol while driving a crane. F
telephoned L’s GP who said that L was depressed but did not have a drink
problem. L was dismissed. The EAT upheld the tribunal’s finding that the
employer should not have dismissed L without obtaining a medical report. The
Court of Session said that the main consideration was whether L was under the
influence of alcohol. Details of the depressive illness were not of material
significance in assessing the misconduct, "the essence of which was known
and undisputed". The employer was not under a duty to investigate further.

OH personnel and health and safety duties
Healey v Excel Logistics, EAT 20 May 1998, IDS Brief 622, p5

A health and safety representative is protected from unfair dismissal
arising out of health and safety matters even if employed for less than 12
months. He/she is therefore currently entitled to a minimum basic award of
£7,200 if successful. Here, H was employed from 1995 and became health and
safety representative in 1996.

H was concerned about an entry in the accident book of a supermarket where a
colleague had been injured when making a delivery. He made several approaches
to management of the supermarket about the accident report. His employer deemed
that to be gross misconduct and he was dismissed within a year of
employment. 

The tribunal held that H had gone on a clandestine mission that did not fall
within the Safety Representatives and Safety Committees Regulations 1997
because the supermarket was not under the control of his employer. EAT said
that the tribunal had failed to consider that the inspection was carried out
under Regulation 4(1)(a), enabling a health and safety representative to
investigate potential hazards in the workplace. There was nothing to support
the "clandestine mission" set out by the tribunal and there was
nothing in the Regulations which indicated that the representative needed the
permission of the employer to inspect the accident book.

The dismissal was therefore automatically unfair as he was dismissed because
he was investigating the cause of accidents in the workplace.

OH input and disability discrimination
Leonard v Southern Derbyshire Chamber of Commerce, 2001, IRLR 19

L suffered clinical depression for which she took medication from 1995 and
which was exacerbated in 1997 after she was raped. She went on sick leave in
March 1998 but her condition worsened following her brother’s death in August
1998 and by her dismissal in October 1998, which she claimed was unfair by
reason of disability discrimination.

The agreed medical evidence was the GP report stating she had a long-term
mental impairment. In determining whether the impairment had a substantial
effect on her normal day-to-day activities, the tribunal considered the
Guidance and found that, taking each heading of affected activities as a whole,
there was no substantial effect.

They were impressed that she was managing to cope. EAT said that the
approach was to focus on what the applicant could not do, rather than what she
could do, referring to Paragraph C6 and 7 of the Guidance, indicating that an
impairment may indirectly affect abilities under the set headings. The tribunal
was entitled to take account of her abilities but should not have done so at
the expense of her disabilities. It had not taken account of the fact that she
had not been able to work since 1998 and her coping strategies had failed.

The EAT decided that the applicant was disabled within the meaning of the
Act. The case is therefore remitted to the tribunal for determination of
whether the applicant was dismissed by reason of her disability and whether any
reasonable adjustment could have been made to avert the dismissal.

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