Working Theory

by Michael Reed

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I do employment law for the Free Representation Unit.

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michael at workingtheory.co.uk

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The present now, will later be past

05 September 2013

In Elliott v Joseph Whitworth Centre Ltd the EAT upheld an employment tribunal’s decision to strike out an unfair dismissal case on the basis that a fair hearing was impossible. The problem? That the tribunal had failed, for nearly two years, to serve the ET1 on the respondent.1

Both the tribunal and the EAT concluded that, because of the passage of time and its effect on the witnesses’ recollection, a fair hearing could not take place.

I think they’re wrong about this.

First, while two years is a long time, it’s well within most civil time limits – most are three or six years. Presumably our memories relating to employment matters don’t fade any faster than our memories of our consumer contracts or our personal injuries. So, either there are an awful lot of unfair trials going on outside the employment tribunal or we’re applying an unreasonable double-standard.

Second, neither the tribunal or the EAT heard evidence about the relevant witnesses’ memories or what documentary material was available. They proceeded on the general principle that, time having passed, recollections would have faded. As far as this goes, I’m sure it’s true. But, that a fair hearing is impossible is an extremely high test. It’s not at all the same as ‘it would have been much better to have heard this case earlier’.

Two years is just not so much time that it seems safe to assume that nobody will ever remember enough to have a fair hearing.

At which point you have to move from the general to the specific. The question isn’t ‘Is a fair hearing ever possible in two year old case?’ – because the answer to that is, fairly obviously, ‘Yes’. The question is ‘Is a fair hearing possible in this case?’ At which point, it seems to me, you need evidence specific to that particular case to make a decision.

  1. In fairness, the ET’s administrative error was abetted by Mr Elliott’s representative’s failure to ask why nothing was happening.

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