Claimants for unfair dismissal in an employment tribunal have a lot more to lose than their tribunal fees of £1,200 and to having their compensation claims dismissed. As I discovered when I attended the case of Berry v Assist Security Ltd, which was heard on 3-4 August 2015 at Croydon Employment Tribunal in front of Judge Peter Hildebrand, they can also be subjected to a Restrictive Reporting Order and to paying the respondent’s legal costs.
Employment tribunals make decisions about nearly all cases related to employment disputes. They provide a relatively informal setting, where claimants can in principle represent themselves. Judges are meant to adopt a more inquisitorial approach, regularly intervening to clarify points of law and to challenge evidence. But do not be fooled – tribunals are still a manifestation of adversarial litigation, where claimants who are not conversant with the relevant law can be put at a significant disadvantage.
The Free Representation Unit (FRU) exists to assist tribunal claimants who are not eligible for legal aid, and who cannot afford lawyers. The FRU’s work is done by volunteers, mostly law students and legal professionals in the early stages of their career. All of the FRU’s representatives are trained and supervised by FRU’s legal officers.
As a FRU volunteer myself, I was required to attend proceedings at one tribunal before launching off on my own to represent clients. I therefore called the nearest employment tribunal to me, and arranged with the clerks to attend the case of Berry v Assist Security Ltd, which was scheduled as a two-day hearing.
The claimant’s case was that he had been unfairly dismissed from his job as a manager by the respondent employers, who had tricked him into accepting a part-time job, and to taking a break in employment between the two jobs. However, during the break in employment, the respondents appointed another candidate in place of the claimant, effectively severing his employment. The claimant also alleged that during his employment, he had been forced to undertake work outside his normal duties, and in particular to act as a ‘cover-up’ driver for a person who may only be identified as a ‘Mr H’.
The claimant represented himself, while the respondents were professionally represented by a barrister. This had very important consequences for the outcome of the case – despite the best efforts of the judge to mitigate the imbalance, it was clear right from the start that the claimant was hopelessly out-gunned in terms of the style, structure and content of the legal arguments.
One of the major difficulties in this case was the almost total absence of any formal written communications between the parties – there was no letter of resignation, nor a letter of dismissal. Instead, the only written communications were ad-hoc text messages between the claimant and the respondent’s senior staff, and a limited number of emails. The text messages and emails were accepted as evidence at the tribunal, and these painted an unfavourable picture for the claimant.
Instead of being dismissed by the respondents, the ad-hoc communications suggested that the claimant had orally resigned, since he had found a more lucrative job elsewhere. The respondents asked him to stay on his job for another couple of months, since they were going through an especially busy period. Following that extension in time, and after he had left the company’s employment, the claimant negotiated a part-time role at the company, and purported to withdraw his original resignation. However, the company subsequently decided to employ another person, with the claimant merely being a back-up in case the new arrangements did not work out.
In his judgment, Judge Hildebrand considered the claimant’s oral resignation to be binding; it was immaterial that it had not been followed up by a resignation letter. There was no continuity of employment that the claimant could prove; nor had the respondents entered into a new contract of employment. The claimant could not withdraw his resignation, since it had not been made in the heat of the moment (Martin v Yeoman Aggregates Limited  ICR 314). Since the claimant had not been dismissed, his case for unfair dismissal failed.
Judge Hildebrand accepted counsel for the respondent’s arguments that any claim for constructive dismissal must also fail. The tribunal heard consistent evidence from members of the company’s management that incidents relating to the claimant ‘s driving were too far back in the past; that the claimant was never forced to undertake any driving duties; that such driving requests were relatively infrequent; and that the claimant never complained, and in fact seemed to enjoy, his driving duties.
Judge Hildebrand stated that the claimant had sought an ‘ancillary advantage’ by claiming to have been used as a ‘cover-up’ driver, in an attempt to embarrass the respondents. He therefore imposed a Restrictive Reporting Order pursuant to Rule 50 of Employment Tribunals Rules of Procedure 2013.
The judge also ruled that the claim had been unreasonable and vexatious, and made a costs order against the claimant of £4,000, pursuant to Rule 76 of the Employment Tribunals Rules of Procedure 2013. Upon hearing of the costs order, the claimant enquired as to the timescales and procedure for payment. The judge replied that this would be up to the respondents. The claimant then made a quick exit from chambers, no doubt finally recognising the perils of embarking on an employment tribunal.
Fathi is Vice-Chair of the OULS. Based in West Sussex, Fathi graduated with an LLB from the Open University in 2014 and intends to start a BPTC with BPP University in September 2015. He holds Lord Denning and Hardwicke Scholarships from Lincoln’s Inn, and won the national ICLR mooting competition in 2013.