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RECENT CASES |
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Employment claims Tribunal claims 1. Statutory dismissal and disciplinary procedure: extension of time limit to bring tribunal claim ¶¶9479+, ¶6700 Where a statutory dismissal and disciplinary procedure applies, the normal time limit for presenting a claim will be extended by 3 months where an employee presents a claim after the normal time limit but had reasonable grounds for believing, when that time limit expired, that a dismissal or disciplinary procedure (whether statutory or otherwise) was being followed in respect of the claim. In an example as to what can amount to reasonable belief, the EAT has held that erroneously raising a “formal grievance” instead of an internal appeal after the employee was made redundant, does not negate that an employee reasonable belief that a dismissal procedure was continuing. The phrase “statutory or otherwise” indicates a broad range of procedures. Further, the employee had only raised the issue as a grievance as that was the advice she had received from her union representative. Harris v Towergate London Market [2007] EAT case 0090/07 3. Composition of tribunal ¶9607, ¶¶9650+ The EAT has given guidance as to when a Chairman should hear a matter on his own and in doing so emphasised that this question is a judicial, not administrative, decision: - where interim case management discussions (i.e. interim hearings) are held prior to the substantive hearing, the Chairman conducting the interim hearings should inform the parties as to whether, in his opinion, the substantive hearing is to be before a full panel or a Chairman alone, applying the rules that certain complaints will be heard by a Chairman sitting on his own unless it is inappropriate to do so. To this end, the Chairman will invite any submissions as to whether he should exercise his discretion for the hearing to take place before a full panel (see ¶9608). A simple explanation of the respective merits of trial mode should be given to the parties, particularly unrepresented parties. If representations are made the Chairman should rule on the point, giving brief reasons for his ruling. The mode of trial, Chairman alone or full Tribunal, will then be recorded in the Chairman's written order; or - where no interim hearing has been held, a Chairman (if appropriate the Regional Chairman, by direction to the Secretary) must ensure that the notice of hearing (see ¶9623) states whether the hearing is to be before a full panel or Chairman alone; if the latter, parties should be expressly invited to make representations if they wish as to why the hearing should take place before a full panel, giving reasons, including those factors which the Chairman will have regard to in exercising his discretion (see again ¶9608). Any such representations will then be considered, after obtaining the views of all parties, and a judicial decision, with reasons, made by a Chairman. Following this, unless there are any representations or appeal, the mode of hearing will be settled, subject to any change of circumstances which requires the hearing Chairman to revisit the question of composition. In the absence of any such point, the EAT emphasised that it could see no reason why the final hearing should be susceptible to challenge on a point of law, the relevant judicial decision having been taken earlier, either at an interim hearing or in the form of standard directions. Sterling Developments (London) Ltd v Pagano [2007] IRLR 471, EAT |