Can Employment Tribunal Cases Be Joined Together?

BusinessLegal

  • Author Duncan Mcfadzean
  • Published May 4, 2020
  • Word count 1,352

At ELP Arbuthnott McClanachan in Edinburgh, we deal with many Employment Tribunal cases in which there are more than 2 parties involved. This can happen even when there is only 1 Employment Tribunal case proceeding.

For example, in a discrimination case, it is not uncommon for the employee making the claim to do so against both the employer or former employer, and also against the individual who it is claimed has committed a discriminatory act. In a case like that, there will be at least 3 parties to the claim. However, there is still only one Employment Tribunal claim if all of the Respondents (which is the name for the defenders in an Employment Tribunal case) were named on the original Employment Tribunal claim form (ET1).

What Happens When There Is More Than 1 Employment Tribunal Claim But The Claims Are Closely Related?

There are however other circumstances in which there may be more than 1 Employment Tribunal claim, and where those claims are closely related. Again using the discrimination case example, it is possible that the employee may have raised a claim initially against the employing company, but then subsequently decided to raise an additional Employment Tribunal claim against the individual within the employing company who committed the discriminatory act.

In that situation, there would be 2 Employment Tribunals claims, but it is likely that they would involve consideration of the same facts, including:

  • What treatment the employee was subjected to,

  • Who carried out that treatment,

  • Whether or not they did so because of a protected characteristic of the employee such as the employee’s age, race, sex or disability.

In addition, the legal issues in the 2 cases are likely to be broadly the same, such as whether or not the treatment found to have taken place amounts to less favourable treatment or a detriment, and whether or not that treatment has caused certain losses and injury to feelings.

In situations such as these, where the claimant in each case is the same person, and the Respondents are different but the facts and the legal issues to be considered are broadly the same, it certainly makes sense for the Employment Tribunal claims to be considered at the same time. Sometimes this is referred to as the claims being "conjoined", and sometimes this is referred to as them being heard together.

What Are The Main Reasons For Hearing Employment Tribunal Cases Together? Are There Rules Regulating This?

The Employment Tribunal has powers to regulate its own procedure as it sees fit, to an extent, having a regard to the "overriding objective". The overriding objective is found in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (Schedule 1 – the Employment Tribunals Rules of Procedure). This states that the objective of the rules is to enable Employment Tribunals to deal with cases "fairly and justly", including dealing with cases in ways which are proportionate to the complexity and importance of the issues, seeking flexibility in the proceedings, avoiding delay, and saving expense. As you can see, a number of these points would be relevant to a decision in favour of cases being heard together when they do involve the same parties, facts and/or legal issues.

The question of saving expense is particularly relevant here. It can be expensive for an employee to take time off work (for example in a new job) to attend Employment Tribunal proceedings. It can be expensive and disruptive for an employer to arrange for employee witnesses to attend Employment Tribunal proceedings. It can also be expensive for both parties to pay for solicitors or representatives to assist and represent them at Employment Tribunal proceedings.

In the case of an employer who is defending a claim along with an employee of the employer who is also a Respondent, in some cases the employer may be covering the legal fees of that defending employee as well. In any of those situations it can be important for the party involved not to be paying more than they need to in terms of the number of Employment Tribunal Hearings to be attended, and preparing for those.

The cost of the administration of Employment Tribunal claims is also relevant from the point of view of the public purse and the taxpayer. There is a lot involved in arranging an Employment Tribunal process, including providing facilities and locations for claims to be heard and arranging for Employment Judges and Employment Tribunal panel members to attend and hear evidence in what can be lengthy Employment Tribunal cases. All of this provides good financial reason for cases being heard together when it is appropriate.

What Does It Mean When A Claim Is Treated As A "Lead Case" In The Employment Tribunal?

In addition to Employment Tribunal cases being heard together for reasons such as the above, under the Employment Tribunal rules of procedure there is also provision for certain cases to be specified as "lead cases". This can happen where 2 or more claims have been raised, usually by different employees, but the claims give rise to common or related issues of fact or law. It may be, for example, that all of the claimant employees are claiming that the employer did or failed to do a certain thing which forms the basis for all of the employees’ claims. Examples may be that the employer followed a certain process in a redundancy consultation, or that all of the employees claim that the employer applied a provision, criterion or practice, such as a rule in the workplace in relation to dress code, that was indirectly discriminatory against employees who fell within a certain group, such as members of a particular religion or sex.

In situations like those it can make sense for the Employment Tribunal to hear evidence in relation to the facts of the matter in one case. The reason for this may be that the evidence to be heard on those facts will be the same regardless of which employee is making the claim, and it therefore makes sense, with a view to progressing the claims efficiently and without unnecessary delay or expense, for a decision to be made on the relevant facts in one "lead case".

Similarly, in situations where a number of employees are making claims in the Employment Tribunal alleging the same facts, it is possible that these facts will not be disputed by the employer, or they will be found by the Employment Tribunal to be as claimed by the employees. The Employment Tribunal may then have to apply the law to those facts to decide if the employer defending the Employment Tribunal claim has actually breached the law. This could involve consideration, for example, of whether certain facts can amount to an unlawful deduction from wages or if certain facts could amount to discrimination or victimisation, or if certain pieces of employment law legislation (such as the Working Time Regulations or the Part Time Workers Regulations) should be interpreted in a certain way.

Again, in circumstances such as those it can be in the interests of all parties, and the taxpayer, for a case to be specified as a lead case. If that is done, the other cases involving the same facts or law are likely to be "sisted", which means temporarily put to sleep, and then recalled at the point when the Employment Tribunal has made the relevant decision in the lead case. Depending upon how that decision has gone, the other Claimants may then wish to push forward with the remaining aspects of their claims, or, if the decision has not been in their interests, they may decide that they do not wish to pursue their claims further. This all depends on the circumstances.

Conclusion

The bottom line in all of this is that while Employment Tribunal claims are technically not often "joined together", they are often "heard together" for good reason, and in some situations, the concept of lead cases is used. These are approaches which should certainly be encouraged where possible, and even if the parties to the claims do not suggest this, it is often the case that the Employment Tribunal will.

Duncan McFadzean, Ian Wells and Duncan Hamilton are employment law solicitors with around 35 years’ combined experience advising and representing clients in relation to employment law matters in the workplace, and representing them in the Employment Tribunal.

Solicitors: https://www.elpamsolicitors.co.uk/

Employment Tribunal: https://www.elpamsolicitors.co.uk/employment-tribunals/

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