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When can off the record discussions be used in evidence?

Section 111A of the Employment Rights Act 1996 enables "pre-termination negotiations" to take place between an employer and employee to facilitate discussions. Discussions of this sort, also known as "protected conversations" or "PTNs", are inadmissible in any later unfair dismissal proceedings. However, there are exceptions to this protection, including in relation to automatic unfair dismissal cases (such as whistleblowing, among others) and discrimination claims or where there has been "improper behaviour". Where an exception applies the discussions are not protected and are fully disclosable.
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When can off the record discussions be used in evidence?

Could a tribunal claimant freeze their employer’s bank account?

The Scottish courts have held that they can make protective orders against the assets of an employer where a claim is brought against that employer in the employment tribunal.
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Could a tribunal claimant freeze their employer’s bank account?

Principle of open justice allows non-party to litigation proceedings access to court documents

Can someone who is not a party to a court case in England get access to court documents?  Does this extend to witness statements and documents lodged as evidence?  What does this mean for employers, claimants and witnesses in employment tribunals?  The Supreme Court had to consider these questions in the case of Cape Intermediate Holdings Ltd v. Dring [2019] UKSC 38.

In England and Wales the rules which regulate court proceedings are called the Civil Procedure Rules (CPR).  Under CPR 5.4C(2) a non-party to litigation may, if the court allows, “obtain from the records of the court a copy of any other document filed by a party”.  Statements of case, judgments and orders made in public are available without permission (under CPR 5.4C(1)).

The Supreme Court held that, as a default position, the public should have access not only to the parties’ submissions and arguments, but also to documents parties have placed before the court and referred to during the hearing.  In delivering the judgment, Lady Hale stressed the importance of justice being done in the open and emphasised that the public will only be able to understand how the justice system works and how judges reach their decisions (and be able to question the same) if they have access to the evidence and documentation relied upon during the proceedings.

However, the CPR does not grant an unfettered right of access.  The person making the application has to be able to explain:

  • why they are seeking access; and
  • how granting access would advance the open justice principle.

It is then up to the court to weigh up whether to allow the application, taking into consideration any risks of harm granting access might cause to the judicial process or the legitimate interests of others.  Reasons to deny access might include protecting the interests of children or national security, or to protect trade secrets and commercial confidentiality. This case is important for parties in employment tribunals too as Lady Hale was clear that the rule applied to all who exercise the power of the state.  The decision should not be interpreted as a “free for all”.  Where a third party is making a fishing expedition and does not have good grounds to receive the information, the court does have the discretion to withhold it. However, claimants, employers and witnesses should remember that tribunal proceedings are public and there are very limited rights to privacy.

Principle of open justice allows non-party to litigation proceedings access to court documents

A word to the publicity shy – Employment Tribunal judgments must be published

Judgments issued by Employment Tribunals are maintained in a public register and, since 9 February 2017, published on an online database. Previous case law tells us that Employment Tribunals have no ability or discretion to override the requirement to enter a judgment on the register, save in very limited circumstances.

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A word to the publicity shy – Employment Tribunal judgments must be published

Employment Tribunal not bound by list of issues that miscategorises claim

In the recent case of Saha v Capita plc the Employment Appeal Tribunal (EAT) held that an Employment Tribunal (ET) is not compelled to rely on a list of issues that wrongly categorises the claim to be heard.
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Employment Tribunal not bound by list of issues that miscategorises claim

Five-fold rise in workers taking their employers to tribunals

The number of workers in Scotland taking employers to task in the Employment Tribunal over unfair pay and conditions has seen a five-fold increase after controversial Employment Tribunal fees were scrapped. The fee regime, which saw employees paying up to £1,200 to pursue a case, was scrapped in July last year following a Supreme Court ruling that the charges were unlawful. Current UK government figures show equal pay cases accounting for the bulk of claims – an increase of 360%. Unfair dismissal claims also increased by 84% over the period, while sex discrimination claims went up by almost 50% and disability discrimination claims increased by 100%.
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Five-fold rise in workers taking their employers to tribunals

Employment Tribunal (ET) quarterly statistics published

In September 2018, the Ministry of Justice (MOJ) published its quarterly (April-June 2018) ET statistics. The statistics reveal that the number of single claim cases have more than doubled - up 165% to 10,996 compared to the same quarter in 2017. The number of multiple claim cases have increased by 344% to 42,700 compared to the same quarter in 2017. The trajectory of claims increasing continues from earlier this year (January-March 2018) – where single claim cases increased by 118% and multiple claim cases increased by 40% compared to the same quarter in 2017.
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Employment Tribunal (ET) quarterly statistics published

Only 20 per cent of tribunal fees have been refunded since Supreme Court ruling

Following the Supreme Court ruling which declared tribunal fees unlawful, the government pledged to refund those who had paid tribunal fees between 29 July 2013 and 26 July 2017. An official refund programme was set up in October 2017 to handle the process.
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Only 20 per cent of tribunal fees have been refunded since Supreme Court ruling

Unfair Dismissal: extending the date of dismissal by the statutory notice period

The recent case of Lancaster & Duke v. Wileman is a useful reminder to employers that terminating an employee's employment in the week before they gain two years' continuous service may still enable an employee to claim that they have the requisite qualifying service to bring a claim for ordinary unfair dismissal.
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Unfair Dismissal: extending the date of dismissal by the statutory notice period

Acas Annual Report

Acas has issued its first annual report since the July 2017 Supreme Court judgment declaring employment tribunal fees unlawful (a previous blog post on the possible effects of that decision can be found here).
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Acas Annual Report