Whether to bring one, or two, sets of proceedings against their former employer in Jersey can be a real dilemma for a disgruntled ex-employee to have to grapple with.
When does this arise? Where the exemployee has the basis for both a statutory claim before the Jersey Employment Tribunal (for unfair dismissal or constructive unfair dismissal) and a breach of contract claim before the Royal Court (with a value of more than £10,000).
Those of you who have already had to address this scenario will be aware of the conflicting issues that can arise. With average earnings in Jersey being relatively high, it is not uncommon for an exemployee to bring (or indicate they intend to bring) both types of claim against their former employer.
The views recently expressed by the Tribunal in an interim decision provide an insight into how it is likely to approach the situation in the future. In that particular case, the Tribunal adjourned the proceedings that had been commenced before it for 6 months to allow the ex-employee time to consider the nature of his complaints further and also to consider his options.
The Tribunal's comments suggest that it is likely to defer making any substantive decision in an unfair dismissal claim if there is the possibility that its findings could in some way prejudice, limit or embarrass the Court subsequently when determining the contract dispute.
More than one set of proceedings, involving exactly the same parties, is not only very time consuming but also potentially costly for both parties. However, sometimes the employer can turn the situation to their advantage, because the pressure is on the exemployee, from a fairly early stage, to make a decision as to how to proceed.
KEY CONSIDERATIONS IN DECIDING WHETHER TO BRING MORE THAN ONE SET OF PROCEEDINGS
A number of factors impact on the decision of the ex-employee, including the following:
- The differing time limits - for an unfair dismissal claim, there is only 8 weeks from the termination of employment to lodge this with the Tribunal. In contrast, in a contractual dispute, there is 10 years from the date of the alleged breach before Court proceedings have to be served. So, the ex-employee has limited time before they have to set out their beef in a JET1, whereas with a contractual claim, there is ample time to seek advice, consider positions, explore a resolution and possibly avoid incurring the costs associated with proceedings before the Court;
- The value of the breach of contract claim - if this is for more than £10,000, it is beyond the remit of the Tribunal and must be brought before the Court. Sometimes, the ex-employee agrees to limit the value to £10,000 and forgo the balance, so the Tribunal can determine the claim. Having the cut off at a relatively low threshold of £10,000 means that it is fairly common for an ex-employee to have to consider whether to bring two separate actions;
- Funding - an ex-employee's ability (or inability) to fund two separate claims is often a deterrent. Legal aid is not available for any claim before the Tribunal, whereas it is for individuals who are a party to an employment dispute before the Court (subject to the financial criteria being satisfied);
- The effect of Article 80 of the Employment Law - this provides that on the commencement of proceedings in the court for breach of an employment contract, any proceedings before the Tribunal shall be discontinued, and the party bringing the proceedings in the court shall indemnify the other party in respect of its costs in relation to the discontinued proceedings before the Tribunal. In practice, for the exemployee, the risk of a costs order possibly being made against them is a real deterrent to bringing more than one set of proceedings against their former employer;
- Orders for costs - the Tribunal does not have the power to make an order for costs, except in limited circumstances, whereas in a Court action, the successful party can expect the Court to make a costs order in its favour. While this does not mean that they will recover all of their costs, they usually recover the majority. At the end of the day, the factual matrix of each termination of employment is unique. The consequence of this is that each potential claim needs to be considered very carefully before a decision is made about how best to proceed in the circumstances. It is prudent for advice to be obtained by the parties at an early stage.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.