When it comes to workplace disputes involving ill-health, both employees, employers and their professional advisers will usually be thinking about the prospect of going to the Employment Tribunal. However, the Tribunal is not the only show in town, writes Charlie Thompson.an employment law associate at Harbottle & Lewis LLP.
The vast majority of workplace disputes are litigated in the Employment Tribunal and, with the requirement to pay an issue fee removed for the time being, we can expect an increase in the number of Tribunal claims.
As public scrutiny of behaviour in the workplace intensifies, and more individuals post under #MeToo, many employers may be bracing themselves for more claims being threatened in the Employment Tribunal. However, while it is the forum for the majority of employment claims, the Tribunal is not the only show in town.
Compared to the Tribunal, the High Court might be seen as too complex, expensive and slow-moving a forum to be attractive to employees, but it can offer them with an attractive variety of means of redress. Without being aware of these, unsuspecting employers could be caught unawares.
Two Potential Causes of Action in the High Court
Where an employee has a psychiatric condition such as an anxiety disorder or depression, the default setting in a dispute is typically to look for protection under the Equality Act 2010 in the Employment Tribunal. However, this is not the only potential cause of action.
All employers are subject to a duty of care not to expose an employee to any unreasonable risk of injury to their physical and mental health. Where this duty has been breached, the employee has suffered a loss (such as developing a psychiatric illness or suffering an exacerbation of an existing condition), and the loss is foreseeable, then there is the potential for a claim in personal injury.
An alternative cause of action on a similar set of facts, especially where there are allegations of workplace bullying or inappropriate behaviour by a manager, could be under the Protection from Harassment Act 1997. In some ways, such a claim is easier for a claimant than a harassment claim in the Tribunal under the Equality Act 2010. Unlike the equivalent claim under the Equality Act 2010, there is no need for the conduct complained of to be “related to a relevant protected characteristic” (e.g. sex, race, disability) – it simply needs to be conduct on at least two occasions which has alarmed the claimant or caused them distress. This is not a high threshold for a claimant to meet, compared to a harassment claim under the Equality Act 2010 or a claim for personal injury.
Limitation Periods – Stale Claims Can Be Refreshed
If an employee wishes to make a claim under the Equality Act 2010, they usually need to act very quickly. In some cases, historical acts and omissions which predate the three month time limit can be brought into play where they form part of “conduct extending over a period”; otherwise, the time limit of three months to bring a claim (excluding any mandatory early conciliation) is strict and can usually only be extended if the Tribunal considers, in its discretion, that it is just and equitable to do so.
Therefore, many potential claimants miss their opportunity to bring a claim, and respondent employers can often make valid arguments, if a claim is brought, that it is out of time and cannot be heard by the Tribunal.
This is generally helpful for employers, who may adopt the mindset that once a potential claim has gone stale for a few months, it cannot be refreshed. However, the limitation periods for personal injury and harassment claims in the High Court are three and six years respectively. Accordingly, not only can disputes which an employer thought had gone stale be resurrected, but also historical issues which HR never knew about could potentially appear from seemingly nowhere. This is likely to be particularly relevant where an employee or ex-employee makes allegations of inappropriate behaviour by a manager from a number of years ago, but did not raise a grievance at the time.
Costs – A Double-Edged Sword
In the Employment Tribunal, costs do not usually “follow the event”. Whilst this removes one potential barrier to justice for claimants, who can be reassured that they are very unlikely ever to be responsible for the respondent’s costs if they lose, it can often play into the hands of the respondent.
An employer, knowing that it has deeper pockets than an employee and that it will not have to pay the claimant’s costs if it loses, can wear down a claimant’s resolve during the course of a Tribunal claim, putting them to the cost of legal fees which will often comprise the majority, if not exceed, the total value of a claim. This is often an effective means of putting a claimant under pressure to withdraw their claim or accept a modest settlement.
Conversely, in the High Court, where costs can be recovered from the other side, the dynamic is different, and such long-game tactics will not work in quite the same way.
Furthermore, whilst the costs of bringing a claim in the High Court are significantly higher than in the Tribunal, there is some costs protection in favour of individuals making personal injury claims – under the “qualified one-way costs shifting” regime, successful claimants can recover their costs if they win, but not be liable for the defendant’s costs if they lose.
Practitioners are usually familiar with the Equality Act 2010 and Employment Tribunal procedure, but less so with the High Court. Whilst the number of Employment Tribunal claims is likely to increase, so too might claims against employers in the High Court – it is a viable and attractive forum for many potential claimants, particularly where the claim is high value or relates to historical events.