Nobody wants to have an employment problem to grapple with. This explains why employers shouldn’t bury their heads in the sand when an employee files a claim against them.
Time limits for responding to claims
There appears to be an increasing number of cases before the Jersey Employment and Discrimination Tribunal where the employer has failed to respond to a formal claim made against it , within the 21 day time limit set down in the Employment and Discrimination (Jersey) Order 2016. The consequences of this can be damaging for employers.
This order was brought in to ensure that parties in a case are on an equal footing, that time and expense are saved, that cases are dealt with in a proportionate way to the complexity of the issues and so delay is avoided.
If the employer, known as the respondent, needs more time to respond they must apply for an extension within the 21 day period. The person making the claim, or applicant as it is known, is entitled to object to that application. An extension may be granted, if the Chairman or her Deputy consider it just and equitable to do so.
If there has been no response, an assessment is made of whether the case can be properly dealt with on the evidence that exists and, if so, a hearing is ordered to take place in front of a single panel member who is likely to be the Chairman or her Deputy. Once that decision is made, the respondent is entitled to notice of the hearings and to attend but can only participate in the hearing to the extent allowed by that panel member.
As an example of how this works in practice, an employee had brought a case of unfair dismissal against the employer. The employer was given five opportunities by the registrar of the tribunal to file the response to the claim but failed to do so.
The employer applied to the tribunal for permission to file its response late and the tribunal declined. The employer was allowed to file a bundle of relevant papers but was not allowed to cross-examine the employee. As mentioned above, this type of hearing takes place before a single panel member and the decision is made by one person instead of three.
The employer’s failure to file its response may well have impacted on the decision because the employer was found to have unfairly dismissed the employee as it did not follow a fair process. However the employee’s conduct contributed directly to her dismissal and so the award that she otherwise would have been entitled to was reduced by 75%.
In another case , the respondent employer had again failed to file a response and applied by email to postpone the hearing one hour before it was due to be heard. The Tribunal rejected this application and the hearing proceeded before the chairman alone. As in the last case, the chairman found in favour of the employee.
It’s cases like these which demonstrate how important it is that employers take claims from employees seriously and give them the time and consideration they deserve.
In many instances it would be prudent to seek proper legal advice. A lawyer with expertise in this area would then ensure that all documentation is lodged at the right time and that the employer is able to be represented at the tribunal.
At Viberts we are well versed in these types of cases so feel free to contact our employment team for further advice.