Legal Updates

Employment Law – Employment Tribunal Proceeding – Stay of Proceedings – Unfair Dismissal

The recent case of HCA International Ltd v May-Bheemul [2009], involved a determination relating to the practice carried out by the employment tribunal. The employee in this case stated working for the employer on or around the 31st of August 2004. She was employed as a weekly payroll administrator.

Subsequent to he beginning her employment, she was assigned to the post of finance co-ordinator on the 12th of March 2007. She resigned on the 17th of January 2008. Following her resignation, she presented a claim before the employment tribunal alleging unfair dismissal on the 15th of April 2008. The claim was listed for the 23rd of September 2008.

On the second day of the hearing the employee was deemed unable to continue giving evidence during cross-examination. This meant that the case was stayed until the 11th of March 2009.

The employee's solicitors were instructed to write to the tribunal on the 10th of February 2009. The solicitors’ letter enclosed a letter from the police outlining a number of requirements that the employee was obliged to adhere to.

Upon receipt of the letter from the employee’s solicitors and the letter from the police, the judge elected to grant permission for the employee to comply with certain requirements. However, due to an administrative error, a copy of the judge’s order was sent to the employer.

The employer duly made an application for the order to be revoked on the grounds that the employee's solicitor had not complied with Rule 11 of the Employment Tribunal Rules 2004. It should be noted that Rule 11(4) made the provision that any application to the tribunal had to be made via notice to the opposing party.

Then, on the 26th of February 2009, the Regional Employment Judge (“REJ”) wrote to both parties informing them that the case in question had been stayed until the 11th of June 2009.

The employer presented an application to the tribunal on the 6th of March 2009, requesting that their application to have the order revoked be considered as a matter of urgency.

The REJ responded to the employer stating that no applications would be considered whilst the proceedings in question were stayed.

The employer duly lodged a notice of appeal on the 27th of March, and an answer was lodged by the employee on the 24th of April, which was strictly outside of the time limit applicable to the circumstances. The registrar did however grant an extension of time for filing the answer.

Having seen the answer the employer then applied to amend the notice of appeal.

The amendments that were sought by the employer were as follows:

  • The first amendment made an alternative submission; and
  • The second amendment invited the Employment Appeal Tribunal to order the tribunal to consider the employer's further application.

The application was refused by the registrar and the employer duly appealed on the substantive issue and on the decision of the registrar.

On appeal, the employer made a submission that the order dated the 23rd of February should have been revoked.

The appeal was allowed in part.

Firstly, the first amendment that was sought by the employer arose directly from the substance of employee's answer and, considering the unusual circumstances of the case, should have been allowed. However, the second amendment that was sought was deemed to be an issue that could and should have been pleaded in the original notice of appeal.

Secondly, in all the circumstances of this case the tribunal failed to apply the rules of procedure that should have been followed. Accordingly, the stay of proceedings that was imposed by the REJ was lifted in respect of the employer's revocation application.

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© RT COOPERS, 2009. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.




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