Poor processing

23 Sep 2013

In Elliot v Joseph Whitworth Centre Ltd, the Claimant, Mr Elliot, was dismissed by Joseph Whitworth Centre (JWC) Ltd on 6 February 2010. 

On 30 April 2010, Mr Elliot presented a claim for unfair dismissal to the Tribunals Service.

Nearly 21 months later, Mr Elliot’s trade union representative contacted the Tribunals Service asking what had happened to Mr Elliot’s claim.  The claim form was subsequently accepted and served on JWC Ltd.

In their response, JWC Ltd applied to have the claim struck out on two grounds; firstly on the ground that the claim had not been actively pursued (Rule 18(7)(d) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004) and secondly, on the ground that it was no longer possible to have a fair hearing (Rule 18(7)(f)).

At a Pre-Hearing Review, the Tribunal found in JWC Ltd’s favour, holding that the delay was “inordinate and inexcusable” and as a result, it was no longer possible to have a fair hearing.  It was held that much depended on the memory of the relevant officers and the Tribunal agreed with JWC Ltd’s argument that, given the length of time that had elapsed, their memories would have faded.  This was compounded by the fact that the officers had either not taken notes or they were no longer available.

Mr Elliot appealed, arguing that the Tribunal had heard no evidence in respect of witnesses’ recollections and therefore could not have reasonably concluded that memories would have faded.

The Employment Appeal Tribunal (EAT) held that the Tribunal’s approach could not be criticised.  In other cases, the fact that people have left the organisation or gone abroad is not necessarily a reason as to why there cannot be a fair trial, but fading memory is.  Furthermore, the EAT confirmed that it was reluctant to interfere with a Tribunal’s decision where the Tribunal had not erred in law.  In this case, the Tribunal had decided what constituted a delay and concluded that it was inexcusable.  Accordingly, the EAT dismissed Mr Elliot’s appeal.

Our view:

In this case, a two year delay in dealing with a Claimant’s claim form, together with the failure of Mr Elliot’s representative to make enquiries meant that a fair hearing was impossible.

In reality, a two year delay in processing a claim form is unlikely; however, since the introduction of the remission system, the Tribunals Service has estimated that some claims may not be presented to a Respondent for up to 9 months whilst applications for remission are being determined.  In light of this, it is advisable to keep all employees’ personnel files for at least 12 months.