The powers of the Employment and Discrimination Tribunal (‘The Tribunal’) have been enhanced as of 1 November 2020. The Tribunal now have the power to dismiss or strike out complaints on a number of grounds.
Previously, the Tribunal was only able to refuse to hear a claim on the grounds of the complainant failing to provide documentation; if a settlement had been reached between the parties or if it was vexatious or frivolous. This meant that the claim had to progress quite some way before the Tribunals powers could be used even where the claim may have on the face of it seemed to be vexatious or frivolous from the outset. This led to quite some time and expense being incurred by the Respondents (the employer) while also taking the Tribunals time away from dealing with other claims.
The new law – The Employment and Tribunal (Guernsey) Order, 2020 – provides the Tribunal with the power to strike our claims at the outset if it considers it has no ‘reasonable prospect of success’. This will not mean that the Tribunal will not have to review the claim to a certain extent to come to this conclusion. The Order provides that the Tribunal will need to send a notice to the parties requesting that they provide written representations, or further evidence, to explain why they feel the complaint should not be dismissed. It is anticipated that some form of internal case review will be undertaken by the Tribunal to justify the decision to strike out the claim however what this may look like is likely to be known once the powers are used.
Under its new powers the Tribunal may strike out a claim at any stage of the proceedings on the following grounds:
- It is scandalous or vexatious or has no reasonable prospect of success,
- The manner in which the proceedings have been conducted by or on behalf of the complainant or respondent (as the case may be) has been scandalous, unreasonable or vexatious,
- Non-compliance with any provision of the Order or with an order of the Tribunal,
- It has not been actively pursued,
- The Tribunal considers that it is no longer possible to have a fair hearing in respect of the complaint or response (or the part to be struck out).
Employers are minded to prepare for a claim thoroughly and not rely on the strike out provision of the Tribunal should they be faced with a claim by an employee.
Focus HR have experience in assisting employers and employees with Tribunal claims, having team members who are trained conciliators that have worked within the Employment Relations and Tribunal Service and who have been Tribunal Panel Members. Should you find yourself in the situation of potentially facing a Tribunal claim, or have raised or received a Tribunal claim, feel free to get in touch for an initial consultation to see how we may be of assistance.