“Frustratingly high” level of employers failing to reply to tribunal claims

Tuesday 09 April 2019

Around one in ten of all work compensation cases automatically led to a pay-out of potentially thousands in the claimant’s favour last year – all because the accused employers were too slow at responding to the claim.

Overall, 8% of all claims heard in the Employment and Discrimination Tribunal (EDT) were ‘Article 12 Default Judgments’ – a figure described as “frustratingly high” by Chair Hilary Griffin in the tribunal’s annual report.

She explained that the tribunal had attempted to reduce these default cases by making the 21-day limit clearer on letters and envelopes sent to respondents, but that many still failed to file their reply ahead of the deadline.

Pictured: Respondents to discrimination claims have 21 days to respond.

“The EDT has no power to exercise discretion in such cases and may not allow a response form to be submitted late. Inevitably, where a respondent has filed a response form late, the EDT usually finds in the claimant’s favour,” she explained.

Elsewhere in the report, Mrs Griffin said employers need to take advice on how to address disability-related issues in the workplace.

Although the Discrimination Jersey Law (2013) was only extended in September last year to cover it, claims involving disability in the last four months of the year accounted for 11% of discrimination claims for the whole of 2018.

And the tribunal chair predicts a further rise in such claims in 2019, particularly involving work-related stress.

The tribunal’s annual report presented to the States last week shows that claims in all areas of its work fell last year by 32% compared with 2017, though they were broadly in line with previous years, the fall being largely attributable to what is regarded as an untypical year in 2017.

Pictured: Tribunal Chair Hilary Griffin said that employers should ensure they're able to deal with disability-related issues in the workplace.

During the course of 2018 there were 197 employment and discrimination claims, while tribunal chairs conducted 174 hearings and case management meetings, leading to a total of 70 judgments, some dealing with applications for leave to appeal to the Royal Court.

There was a sharp decline in claims for unfair and constructive dismissal with 113 claims being filed of which 18 unfair dismissal claims went to a final hearing. Employees were successful in nearly 60% of these cases, but claimants for constructive dismissal found the burden of proof more difficult with only one claimant achieving a successful outcome.

Of those receiving compensation, five out of the eight successful claimants had their compensation reduced, often in circumstances where there was an element of contributory fault on their part.

Claims for unpaid wages and for employers failing to provide itemised pay statements both showed significant increases last year.

The largest number of discrimination claims involved work-related disputes of which age discrimination constituted the largest number. The panel dealt with claimants who alleged discrimination on the basis both that they had been unfairly treated because they were too old, but also too young.

Sex discrimination and pregnancy and maternity-related discrimination together made up 36% discrimination claims, while claims relating to sexual orientation constituted 4%.

In her foreword to the annual report, the panel chair also highlights the introduction of more detailed case summaries at the earliest stages of the tribunal’s involvement in a bid to make the process a less daunting one for unrepresented parties.

“Since the introduction of these summaries, we have seen a reduction in the number of inquiries made to the Registrars by parties after their case management meeting,” said Mrs Griffin.

It is hoped that this will, in turn, result in an increase in settling cases earlier and, where final hearings are required, a more focused process dealing with the relevant issues distilled in the case summaries.  During the course of 2018 the tribunal also introduced guidance notes in Portuguese and in Polish.