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Senior Partner
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Experience:  Solicitor with more than 30 years experience
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Transfer of ET claims to HC in wake of subsequent PI claim.

Customer Question

I have lodged claims with the ET for Unfair dismissal and discrimination. After belatedly taken advice, I now realise I should have made a personal injury claim for a stress related condition at the outset and had the ET matters transferred to the High Court after the claims had been made.

The claims including lost wages will be in excess of £50k.  A schedule of loss has been prepared but it would be feasible to assign PI losses as an alternative to losses  derived from discrimination. I believe these to be in excess of £50k. It would be hard to separate the PI from the ET claims because they are founded on exactly the same facts. I now need to start a PI action urgently before final preparations for trial at the ET take place. If they can the R's will try to object to any transfer and try and keep the ET claim's at the ET.

MY QUESTION IS: Is the transfer from ET to HC automatic once a PI claim has been issued on the same facts of the ET claims or is there the power of discretion given to any of the ET, CC or HC? What is my best method for ensuring transfer of the ET proceedings to the High Court so they may be joined to a PI claim based on the same facts? Is a late PI claim treated any differently?

Submitted: 2 years ago.
Category: Law
Expert:  Nicola-mod replied 2 years ago.
Hello,
I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.
I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Nicola
Customer: replied 2 years ago.

Yes I will wait the answer is important to me.

Customer: replied 2 years ago.

I have edited the price to £60 if this helps

Expert:  Nicola-mod replied 2 years ago.
Hello,
We will continue to look for a Professional to assist you.
Thank you for your patience,
Nicola
Customer: replied 2 years ago.

I can't really understand the difficulty with this question.

Any employment or personal injury I barrister should be able to confirm the ET has no jurisdiction over PI claims case and advise if the other ET on the same facts MUST be transferred to the HC with it and how best to go about this.

It is a procedural question and should be familiar to specialists in this field. You are now making me doubt my own research - I understand the ET has NO jurisdiction whatsoever to her PI claims..

Customer: replied 2 years ago.

Would I be better asking for a refund on the question and seeking a months free trial and asking to have a live chat with an expert?

Expert:  Nicola-mod replied 2 years ago.
Hello,
I'm afraid I have not had any feedback on this question. I am happy to keep searching for an Expert to assist.
Thank you,
Nicola
Customer: replied 2 years ago.

If you have someone - perhaps try a London based set of Chambers - most transfers like this take place in London based claims from what I read.

Don't think NW area is where the answer will lie.

Expert:  Senior Partner replied 2 years ago.
Hi thanks for your question. I am sorry you have had to wait for an answer but I am not surprised as it is very unusual/. I am afraid the short answer is that you cannot transfer an unfair dismissal claim to the High Court. \unfair dismissal is a remedy that exists only as a result of statute and the remedy afforded is a claim in the employment tribunal. You can bring breach of contract claims in the civil courts but not unfair dismissal claims.
To achieve what you want you will need to issue civil court proceedings either in the high court or the county court and then apply to the tribunal to stay the unfair dismissal proceedings pending the outcome of your other claims in the high court. As the claims are brought upon different legal basis there is not bar to having 2 proceedings running at the same time even if based upon the same facts.
It is not uncommon to have an unfair dismissal claim in the tribunal along with a high court or county court claim of damages of breach of contract. Normally one is stayed pending the outcome of the other because the overall damages are interrelated. So if you get damages for loss of earnings as a result of stress you cannot get damages of the same loss in the unfair dismissal claim.
Senior Partner, Solicitor
Category: Law
Satisfied Customers: 13325
Experience: Solicitor with more than 30 years experience
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Customer: replied 2 years ago.

Hi Thanks for your answer. Does this restriction also apply to discrimination claims?

i.e.it only can be heard at the ET? Following your answer my hope is to get the U/D and discrimination claims stayed in order to pursue breach of contract and PIU claims in the HC.

The reason being is that the employer - on the documents has deliberately lied - and knowingly misrepresented the situation with a view to trying to unlawfully claiming a substantial sum of money back from me - although they pulled back from actually going through with this- the statements made by senior management to a disciplinary hearing were clearly false and documentary evidence clearly records these statements could not have been made honestly. The employer does not fear the tribunal and I am certain they are prepared to lie on oath there. The ET takes a broad brush approach and this forum is not robust enough to hear this unusual kind of case.

Unfortunately I was warned of this very early on but it has taken me the best part of a year to realise that this is in fact the case. However the HC is a different matter. The former employer works in criminal justice and I do not believe they will adopt anything other than a procedural approach to excluding evidence and if that fails will have to throw in the towel or the individuals concerned will ultimately face criminal charges.

SO...the other part of my original question to you now becomes clear....

Who decides which proceedings are stayed? Can I ensure the new matters are heard at the HC first? The value of the claims are well in excess of 50K. The respondent will try to keep matters et the ET. What is my best strategy for ensuring the new breach of contract and PI claims go ahead first?

thanks

Expert:  Senior Partner replied 2 years ago.
Thanks for your follow up. Employment Tribunals have jurisdiction on discrimination matters in relation to employment. I am afraid it is very much for the discretion of the relevant tribunal or court to decide which action can or ought to be stayed. It depends if the outcome of one is contingent on the other. You need to persuade the tribunal that the assessment of damages would not be practical until the outcome of the high court litigation is known but also whether the decision of the court would have a bearing on the tribunal issues.
If your personal injury claim is based upon workplace conduct then the outcome of that may be directly relevant to the tribunal claims.
Customer: replied 2 years ago.

Thanks perfect.

Just clarification on the final matter you touched on re discretion.

As the HC is a superior tribunal wouldn't it normally be best practice for the ET to defer until the outcome of the superior tribunal is known?

All the claims are based on exactly the same facts

but the decision on which cases are heard first isn't made on which claims were made first - correct? -

You sound the sort of chap I should've contacted at the outset.

Very difficult employment law. Not much going for the claimant at the ET. I understand contract and PI much better - I am dizzy with the ever changing procedural rules and approach of the ET. No wonder Labour are considering scrapping it! I have some legal knowledge - goodness knows what is must be like for a claimant in person who has none!!!

If it isn't a bridge too far - do you think my approach re the HC is a good one given the bare facts I have presented to you? I realise the costs implications at HC may be much more severe but I am sure if the claims are well drafted the employer wouldn't dare step into the witness box.

I will give you a positive feedback. Thanks again

Expert:  Senior Partner replied 2 years ago.
Given that the facts alleged are the same it does not make sense for the allegations to be considered by two different forums. If nothing in the high court turns on the decision of the tribunal - and it does not as the causes of action are different - so even if you lost in the tribunal that would necessity bar a personal injury action. So yes it makes sense for the employment claim to be stayed. A court action is however stayed only if you ask for it- or the other side does. Bear in mind they may object. You are right the. Court rules are very difficult and not drafted with litigants in person in mind. I gave to say however that my view is that the tribunal us the easier forum and you are not at risk on costs. If you lose in the high court you can end up with a huge costs order against you. Tribunal chairmen are pretty good nowadays. The strategy is up to you but given you have 3 years to bring a high court claim and the tribunal is easier, I would have been tempted to pursue the tribunal first and then go to the court. Bear in mind that damages can be uplifted for discrimination and if dismissal was on an inadmissible ground like discrimination then tribunal damages may be uncapped. If you have documentary evidence then the employer lying is damaging whichever forum you go to.
Customer: replied 2 years ago.

Hi

Thank you so much. I perhaps should have said the PI action dates from events which began in Feb12 and finished in July 13 when I was dismissed. Because the events of Feb 12 were crucial to what went afterwards I need to lodge the PI claim before Feb 15 to ensure these events are included. I intend to cite three defendants - the employer one former employee and a current employee (from senior management )Breach of contract is 6 years as far as I am aware but the PI claim and that would need to be lodged together. The ET matters are due to be heard in Jan/ Feb 15.

On these order of facts a stay of the ET claims is required wouldn't you say? I take what you say about costs. But if you had a statement saying I was not subject to a flexible working arrangement over four year period which resulted in disciplinary proceedings by a senior manager - but where the same manager had previously stated that I was in the last four previous appraisals - where a staff newsletter said the same and the same manager had provided had provided a reference clearly stating that - then tired to claim £25k back from me for not working contracted hours - I would say that person won't go in front of a HC judge and risk perjury or false representation - that is why I am taking the individuals as D's so they can't avoid the witness box. ANy additional advice you can give would be well received but I am going to give feedback now. If it is possible to pay you for an hours advice after this - I would consider it - even if just to check my docs over - as long as it isn't subject to breaking rules of this site. thanks again

It is a shame these forums to not permit referral. I feel you might be the person to assist. I can do my own drafting but do not really want to conduct the hearings myself though I have 7 years experience as an advocate in the CJ field. I have found that personal involvement fogs the objectivity needed to apply the brain to legal/advocacy matters. Too much wood to see the trees. If you feel able to reply to this last point about ET vs HC on the basis of the PI claim being time barred in Feb I would be grateful - but if not I will leave an excellent feedback for you - you have been very clear and precise..

Expert:  Senior Partner replied 2 years ago.
Thanks for the further follow up. The limitation period will run from when the claim arises which could be later than the actual date of the facts relied on if your illness/injury took place afterwards. But it is sensible to try and make sure you are within the limitation period.
Based upon what you say about the written evidence I would not have expected anyone to be able lie before a tribunal anymore than before a judge although it is certainly true that the environment of a high court is more intimidating as you are no doubt aware. It sounds outrageous that your employer tried to claim money back.
So yes it makes sense to lodge the claim and then suggest the tribunal is deferred if possible.
I assume that there is no sensible possibility of settling this?
You are right that it is difficult to be objective. I would with pleasure help you further but I am not readily available at the moment . I can recommend a sensible litigator who might be able to assist you If you are based in the South East?
Customer: replied 2 years ago.

Hi

I contacted you before regarding transfer of proceedings from the ET to the HC. I now wish to pursue a common law breach of contract claim together with a PI claim in the HC and have the Et claims stayed. I understand it is possible to bring a breach of contract claim in the HC provided this is not linked with dismissal (Eastwood Case)?

My situation was they provided me with flexible working practices so that I could study towards two qualifications - a month before the end of my final examinations I was informed no flexible working practices were in place and that I should work strictly to office hours. This had a disastrous effect on my exams - failing one open book exam in the May that I had previously passed in the mock in Feb coming top of my cohort and second in my year. The stress I was put under led to other situations.

This was when they tried to say I owed them £12k for overpaid wages but pulled back from finding it proved at a disciplinary after taking legal advice even though I made no defence of the charge except to say the flexible working practice was in place. They continued to deny this. There are some handwritten meeting journal work notebooks which recorded these arrangements in detail but so far the R's have been successful in persuading the ET not to order their release. If make a claim where this is a central issue the HC will I am sure order the release of these. Finally, in any event these arrangements were outlined in four previous appraisals of which I have copies though their is more detail in the notebooks. I might need someone to look over the Particulars of Claim after I have drafted it and also my schedule of loss (which I have prepared for the ET and which I can adapt) - you also mentioned someone who might be able to help?

Expert:  Senior Partner replied 2 years ago.
Based upon what you say , I would have thought a county court claim would have sufficed. You could try contactingLeszek Werenowsk at Attwells Solicitors LLP. You can find the contact details online . He has a lot of expertise in employment issues.
It sounds as if most of this is a matter of evidence
Customer: replied 2 years ago.

Hello thanks for your answer. I am off to the EAT now overnight for an appeal against a CMD judgement so wont be able to reply further until next week.

Briefly - the total cost of the four years study was itself easily £20k. The loss of performance and job opportunities plus the associated P.I .this caused makes the claim more than £50k particularly because of my age. I understand I can make a county court claim then pay an enhanced fee later to upgrade? Can the claims be linked to make for more than £50k or do they have to be separate claims?

Expert:  Senior Partner replied 2 years ago.
They can all be linked. Generally it is correct that claims over £50k will be allocated to the high court. When you file the. Claim you specify the limits in effect. The fee of course depends upon the size of the claim

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