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
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
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
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
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.
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