North Bristol NHS Trust v Harrold concerned a nurse who brought unsuccessful employment claims against North Bristol NHS Trust (the Trust) in 2004 and 2006. In 2006 the Trust referred the nurse to the Nursing and Midwifery Council (NMC) for alleged professional misconduct, citing two letters written by her in 2006 in which she made accusations about the Trust and its employees.
The nurse later brought a claim alleging victimisation. The tribunal decided during the hearing that the nurse was complaining of race discrimination in the letters she wrote in 2006 and could therefore rely on these for her victimisation claim. The Trust applied to adjourn the case so they could obtain evidence from those who referred her to the NMC. The tribunal refused on the basis the Trust should have called them as witnesses anyway as the reason for the referral was the critical issue. The tribunal upheld the nurse's claim, concluding that her claim against the Trust in 2006 was the reason they referred her to the NMC.
The Trust appealed the decision and argued that they should have been granted an adjournment due to the introduction of the race element in the claim. It also argued that the tribunal should allow the witness evidence from the employees who had referred the nurse to the NMC.
The court held that the tribunal did not make an error in its judgment. The Trust should have known to call those witnesses even before the tribunal's finding about race. The fact that they failed to do so did not entitle them to an adjournment to obtain this evidence.
The point to note from this case is that employers must be prudent in gathering all relevant evidence prior to a hearing, otherwise the tribunal may just proceed without giving a further opportunity to obtain that evidence.
Number of Employment Tribunals fallsThe Employment Tribunal and EAT statistics for 2011/12 recently published by the Ministry of Justice reveal a 15 per cent fall in the number of employment tribunal claims. The number of claims is expected to fall further in view of the increase to the qualifying period for bringing unfair dismissal claims, which has been increased to two years for claims brought post 6 April this year. Of the total 186,300 claims accepted by the employment tribunal during the year, there was an average of 1.73 jurisdictional complaints per claim which resulted in the Tribunal accepting 321,800 complaints.
Of the 230,000 jurisdictional complaints disposed of, 33 per cent were conciliated by ACAS, 27 per cent were withdrawn, 13 per cent were struck out and 27 per cent were disposed of at hearing. ACAS look set to take on a greater workload if pre claim ACAS conciliation becomes mandatory as proposed in the Enterprise and Regulatory Reform Bill, which recently received its first reading in the House of Commons.
The current forecast by the Government is a 20 per cent decrease in the number of claims as a result of the introduction of fees which is anticipated to be brought in by July 2013.
The statistics also demonstrate an uplift in the number of costs awards made by the Tribunal from 487 to 1,411. An overwhelming 92 per cent of those costs orders were made in favour of respondents. While these figures are skewed given that 800 of the 1,411 costs awards arose from a multiple case, the revised increase in costs awards from 487 to 612 perhaps still represents a slight shift in the attitude of the tribunal in favour of making costs awards.
The largest sum awarded by the tribunal in 2011/12 was £445,023 and was awarded in a race discrimination claim. Significant awards were also made in claims for age and disability discrimination. The highest unfair dismissal award of £173,408 was in excess of the statutory cap of £72,300, as the cap does not apply where the unfair dismissal is for whistleblowing or for raising certain health and safety concerns.