"We cannot forever put off the evil day"

Thursday 20 February 2020

A row over dismissal compensation that has been rumbling on between the government and a former employee for more than a decade has been allowed to continue.

Despite almost 12 years of delays, the Employment and Discrimination Tribunal ruled that the woman's claim for nearly £11,000 over allegations that she was unfairly dismissed and that she’s due holiday pay should finally be heard - despite protestations from her former employer.

The States Employment Board (SEB) made the application to have the case dismissed due to the amount of time that has elapsed since the claim was first brought, but the Tribunal decided that this wouldn’t be “fair”.

The claim was brought before the Tribunal in November 2008, but due to other “linked” proceedings that were ongoing in the Royal Court at the same time, and later the ill health of the claimant, the case was pushed back.

Pictured: The case was only brought back to the Tribunal last year.

After the other proceedings had finished, it took a further nine years for this case to be re-listed at the Tribunal.

Deputy Chair of the Tribunal Advocate Claire Davies remarked: “To describe the delay in dealing with this case as 'regrettable' would be an understatement.”

The Tribunal was told that, while the SEB had produced all the documents it needs for its rebuttal of the dismissal claim, the woman had “struggled to obtain certain documents from her former union representative, who has been on extended sick leave".

But the Deputy Chair noted: “That is not her fault.”

The Tribunal also heard that the claimant indicated she wanted to proceed with her case in 2011, but she then became unwell “and the case remained dormant” until last year.

At a hearing to decide whether the case should continue after such a long delay, the SEB applied to have the case thrown out because it said the claimant’s conduct regarding the claim “has been unreasonable” and that she “has not complied with directions”, or “pursued her case”. 

On the SEB's behalf, Legal Adviser Howard Tobias argued that, because of the delay, “it is no longer possible to have a fair hearing".

Pictured: Advocate Claire Davies made the ruling as Deputy Chairman of the Employment Tribunal.

But the Deputy Chair disagreed, stating: “It is fair to say that there has been delay, but it has to be noted that the claimant’s explanation for the delay (her ill health) was accepted by the Tribunal and that the [SEB] made very little if any effort to argue against the delay, and did not apply to bring the case back to the Tribunal itself.”

Regarding the Board’s claims about the claimant’s compliance with directions, the Deputy Chair said that although the woman “has struggled” to do this, “she has generally not ignored them and has given explanations for the delay and/or has applied for extensions of time which have been granted".

Advocate Davies further acknowledged that the woman “has been hampered” by factors out of her control, deciding: “I do not feel that the claimant has deliberately flouted the directions that have been made, and I do not feel that she is being deliberately obstructive. I do not feel that it would be fair to strike out the claim on this ground at this time.”

She later noted: "We cannot forever put off the evil day."

Turning to the whether there could still be a fair hearing, the Deputy Chair said this argument “troubled [her] the most”.

Having considered the issue that some of the witnesses may not still be in Jersey or if their memories of the circumstances surrounding the case may not be as reliable, Advocate Davies ultimately decided not to strike out the case on this basis either.

She added: “However, if it becomes clear when the witness statements have been filed and the documents have been compiled… that memories are too corroded and that there simply cannot be a fair hearing, then I will revisit this issue.”

It’s yet to be decided whether matters will proceed via mediation or through further legal action, but the Deputy Chair advised both parties to pursue the former option “with an open mind”.