There are many employment disputes which are not heard in the Employment Tribunal. They include claims brought by the employer, which can only very be exceptionally heard at the ET, some equal pay claims, most breach of contracts claims (unless there has been a dismissal) and almost all personal injury claims (save claims for injuries to feelings caused by discrimination).
What should be done where a claimant has the choice of two courts? Often, the respondent’s view is that the decision should be taken by the court rather than the claimant.
Often, judges are sympathetic to this view. Judges distrust the idea of (say) a Tribunal deciding whether an employee has been fairly dismissed and a county court deciding whether the employee is owed to notice pay, because the employer’s defence to both claims may well be the same (the employee was guilty of gross misconduct and I was entitled to dismiss her summarily). And what sort of justice would it be if two courts were to determine the same facts and decide them differently?
The general approach of the courts is to say that one set of proceedings should be paused (in legal language “stayed”), but which proceedings to stay will depend on the facts of the case. In the most general terms, simple cases are more suitable for the Tribunal as a specialist employment court, but the High Court is considered better where the claim is high or the facts or law complex.
The Court of Appeal recently had to consider a case (Halstead v PaymentShield) which concerned live Tribunal proceedings and a prospective High Court claim, which the Claimant had no prospect of funding save through successful litigation at the Employment Tribunal.
The EAT determined that the employment tribunal proceedings should be stayed, essentially because the case was likely to be complex.
The problem for the claimant was that he had no High Court claim, and no prospect of funding it unless he succeeded at the Tribunal first. This was indeed why the employer was so keen to push for the “High Court” option, because rather than pressing on with two claims at once, it meant there was no claim at all.
The Court of Appeal, in a triumph of good sense, has now agreed that the Tribunal case should go forwards. It is a modest victory, but one of potentially wide application where claimants have the choice of civil or employment proceedings.