Lindsay Edwards-Thatcher, an expert in Jersey Employment law, believes that judgments recently made public by the Jersey Employment Tribunal (JET) show a dangerous level of inconsistency.
Both cases involved applicant submissions made outside of the timeframe permitted but which resulted in very different decisions by the Panel,headed up by the same Chair in each case.
Commenting on this apparent lack of consistency Lindsay said:
- ‘All cases brought to the Tribunal need to be considered equally and on the same field of reference if employers and employees are to retain faith in the process.
- These judgments show a dangerous lack of awareness of previous decisions which exposes an absence of consistency that both will find baffling and concerning.’
In a decision 25 September made against the Applicant, in favour of the Respondent Empire Catering Limited, the Panel’s decision was based on the delay in making the submission to the Tribunal.
The case was reported, stating that:
- the Applicant failed to file his complaint of unfair dismissal within the time limit prescribed by Article 76(2)(a) of the Employment (Jersey) Law 2003 (‘the Law’) and,
- as he was not able to show that there were circumstances which meant that it was not reasonably practicable for his complaint to be filed within that time limit, the Applicant’s complaint of unfair dismissal is hereby struck out by the Tribunal.
- The inexperience of an adviser does not amount to an exceptional or unforeseen event allowing the Tribunal to exercise its discretion and admit this complaint … outside the time limit.
- However, in a decision predating this one, 15 August Mrs Hughes vs State Street (Jersey) Limited, the Applicant was given discretionary leave to proceed with their case.
The evidence indicates that on the balance of probabilities the Applicant received misleading advice from JACS as to the latest date for filing her JET ….
- the Applicants reliance upon the incorrect advice of JACS, ….was an exceptional event and that as a direct consequence it was not reasonably practicable for the Applicant to file her complaint …. In the time specified.
Lindsay Edwards-Thatcher says
- ‘It appears that no consideration has been given to the first judgment in making the second. Small and medium sized businesses are already reticent to employ new staff in the face of crippling awards meted out by JET.
- This kind of incomprehensible inconsistency can only further undermine employers’ faith in the Tribunal process and makes something of a mockery of the Tribunal’s remit to pass judgment on the ever growing list of spurious employee claims.
- They cost business and clog up the Tribunal for submissions that deserve independent and fair hearing,’ said Lindsay.
Nothing that both Applicants were advised by non-profit organisations she said:
- ‘Not only were the Applicants reasonable in their belief that the Jersey Advisory and Conciliation Service (JACS) and the Gabinete de Apoioaos Portuguesesem Jersey (GAPJ) would be able to guide them through the Tribunal submission process, but critically when they reached the Panel, a decision would be made that was consistent. It is frankly shocking that JET went on to advise Mr N Escorcio to sue GAPJ.
- ‘If employers are going to have faith in the Tribunal process, that it will provide a fair and balanced hearing, the Panel must prove that it can do its job. These two cases highlight a significant problem for the Panel that will undermine employers’ faith and further restrain them from looking to expand their workforces.’
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