Six cases were heard by the Employment & Discrimination
Tribunal last year – all involved a claim for unfair
dismissal, and in five out of the six cases the claimant
Our Guernsey Employment Law team has pulled together the following key lessons from the six judgments that we think will be of interest to HR professionals, businesses and advisers:
- The Tribunal is under a duty to help litigants in person to pick out what's relevant from their claim, however badly worded it may be. Whilst the Tribunal reminded itself of its obligation to give appropriate help in all cases where the claimant represents themselves, it also made clear that a lack of representation is not a reason to excuse non-compliance with its orders. An employer is entitled to apply to have a case struck out if the claimant fails to engage properly in the process.
- Internal appeals should be limited to matters dealt with at the original disciplinary hearing. In Battle v CT Plus the employee appealed a finding of gross misconduct. When his appeal was rejected, he brought an unfair dismissal claim alleging unfairness on various grounds, including that the appeal process was tainted by the appeal chair considering two matters not raised at the original disciplinary hearing. Because the appeal chair had taken no account of these matters in reaching his decision, the allegation of unfairness on this basis was rejected, but the case shows how cautious employers need to be of introducing new issues at appeal.
- Successive fixed term contracts may be considered a single period of unbroken employment during which employees gain statutory protection from unfair dismissal. In Chiverton v Sahara City Co, Mr Chiverton was employed under a series of annual contracts between 2011 and 2018. He had continued in the same post throughout his employment and there were no contractual provisions evidencing an intention that the employment should not be continuous. There was no time gap between the contracts and no notice payments were paid. He was found to have been continuously employed. To reduce the risk of continuous employment in similar circumstances, consider a break in employment (minimum one week), a change in position/duties, an express statement in each contract that it is not successive with the last, and include in any fixed term contract over 12 months the statutory waiver of unfair dismissal claims.
- Health and Safety concerns must be raised during employment and not just by way of informing an employer about a workplace injury. There were two claims in 2019 based on health and safety – potentially allowing the claimants to bring their claims without the normal requirement for 12 months' service. The findings in both cases are helpful to employers as they indicate quite narrow parameters for a successful health and safety claim. Specifically, the Tribunal held that health and safety issues must be reported to the employer during the course of employment, not later in the context of a claim, and simply reporting a workplace injury won't be enough for an employee to show that they complained about or refused to work in unsafe working conditions, one or both of which are required to meet the statutory test.
Walkers' specialist Guernsey Employment Law Group is the largest in the jurisdiction – we would be pleased to brief your teams on the latest judgments and their implications for directors and HR professionals.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.