Bringing a Claim in the Gibraltar Employment Tribunal
Chris Brunt is a Gibraltar Employment lawyer.
Introduction
If you have been unfairly dismissed by your employer, you can bring a claim for unfair dismissal in the Gibraltar Employment Tribunal. What may constitute unfair dismissal, and how an Employment Tribunal decides cases of unfair dismissal is discussed in other posts on this site.
However, in order to claim unfair dismissal an employee must have been continuously employed for at least one year. Section 60(1)(b) Employment Act. It is important to note that this one-year requirement does not apply to other claims that may be presented to the Employment Tribunal such as claims for discrimination or bullying, and which can be brought in the Gibraltar Employment Tribunal from the first day of employment.
There are other exceptions to the right to bring a claim for unfair dismissal that may apply including employees on certain fixed term contracts, but exceptions do not apply to all fixed term contracts, so it is advised that an employee on a fixed term contract whose employment has been terminated seeks advice – Section 63(b) Employment Act.
Other exceptions to the right to bring a claim for unfair dismissal in Gibraltar include employees, who are ’employed’ in Gibraltar but who ordinarily work outside Gibraltar.
Don’t be out of time to bring a claim!
It is vitally important to note that to start a claim for unfair dismissal an employee must file the Claim Form in the Gibraltar Employment Tribunal, and which must be received by the Employment Tribunal within 3 months of the effective date of termination. This means that a claim must be brought no later than 3 months minus a day from the date of termination.
It is important to point out that an employee who has been dismissed understands that the effective date of dismissal (EDT) runs from the date their employment was terminated and not from the date of any unsuccessful appeal.
There is sometimes some ambiguity in employees mind as to the effective date of termination (EDT), this is especially so if an employee’s termination of employment ends after a notice period is served or is put on ‘Garden Leave or has been Paid in Lieu of Notice (PILON) a future post will deal with the subject of Effective Date of Termination.
If you are unsure when the 3 months timing starts to run, you should seek advice because a claim brought outside the 3-month period is almost certainly fatal to any claim for unfair dismissal progressing. There are exceptions but they should not be relied on as the employee would have the uphill task to convince the Employment Tribunal that due to their particular circumstances, it was not reasonably practicable to do so within 3 months. This is a high bar to meet and unfortunately not knowing the law is not seen as a reasonable excuse for not bringing your claim within 3 months minus a day of termination.
How to bring a claim
A Claim Form must be filed or sent to the Employment Tribunal, as discussed above within three months of the effective date of termination (Remember this is three months minus a day)
A former employee can of course instruct an Employment Lawyer who can advise them on the merits of any claim first, and who will take instructions from their client in order to complete the prescribed Gibraltar Claim Form. An Employment Lawyer will take particular care to particularise a claim setting out the facts and the law and the remedies sought, and they will ensure it is delivered promptly and in time to the Gibraltar Employment Tribunal.
Of course, a former employee who believes that they have been unfairly dismissed is perfectly entitled to bring a claim in the Gibraltar Employment Tribunal without legal representation. They can download the Claim Form from HM Government of Gibraltar’s website, or if doubt contact the Gibraltar Employment Tribunal for advice.
The claim form will need to be completed and there is Claim Form guidance available from the HM Government of Gibraltar’s website.
What happens when the Claim Form is presented to the Tribunal?
Once a Claim Form has been presented (as long as it has been completed properly and has not been rejected) the Tribunal will send a copy of the completed Claim Form to the employer and who is called the Respondent. The Employee, who is now called the Claimant (or their lawyer if instructed) will receive notification that the claim has been accepted. The Respondent has 21 days from the date the Claim Form has been provided to them to complete their Response to the Claim and to return it to the Employment Tribunal. The Response is in effect the employer’s defence to the claim, that is if they are contesting the claim for unfair dismissal, and which in my experience they almost certainly will, at least as an opening position.
Mediation
When the Employment Tribunal receives the Response Form, it will forward it on to the Claimant (or their legal advisor if they are legally represented). The Employment Tribunal will then appoint a Mediator who will contact both parties and who will establish whether they are both amenable to mediation with a view to settling the dispute. Resolution of the dispute normally involves the parties agreeing a settlement sum which the Respondent agrees to pay in return for the Claimant agreeing to withdraw the claim. This is a fantastic opportunity for both parties to settle the dispute for unfair dismissal.
Mediation normally involves both parties being contacted separately by the mediator and who will conduct a series of phone conversations to see if there is scope for a resolution. If a Claimant is legally represented your lawyer will not be allowed to attend mediation with the Claimant, however the lawyer will be able to advise the Claimant in advance as to strategy to adopt, and indeed the amount that a claimant may wish to consider settling for. This amount can be calculated taking into account the amount of money a Claimant might receive if their claim was successful, combined with an assessment of the strength or otherwise of the claim
If an agreement is reached in mediation then the parties will enter into a settlement agreement which is a legally binding agreement and which will dictate the terms of any payment and withdrawal of the claim. If the Claimant is legally represented their lawyer will no doubt advise them not to sign any agreement without speaking to them first.
What if mediation is not successful
Mediation is not compulsory, that is to say neither party has to agree to it. It would be wise however for both parties to engage because any settlement at this stage would result in both parties saving costs and which would start increasing for both parties if they were legally represented.
However, If mediation is not successful, the next stage of the Tribunal process involves an Employment Tribunal Chairperson being appointed to preside over the claim. The Claim now enters the Employment Tribunal process.
Directions from the Employment Tribunal
Onward directions as to the timetabling or Case Management of the claim has to be agreed by the Chairperson who will hear the claim. An administrative meeting is called whereby the parties, or their legal advisors if represented, attend to discuss the onward management of the claim. This will include identifying any preliminary issues that need a separate hearing before the claim is heard.
There are many reasons that a preliminary hearing may be necessary, but as an example from above, suppose a Claimant brought the claim more than 3 months after the effective date of termination and the Respondent in their defence raised the issue that (despite the substance of the claim) the Claimant was out of time to bring the claim, then it is likely that the Employment Tribunal would want to hear from both parties in a separate hearing as to whether or not the claim should continue, or should be dismissed at an early stage in order to save unnecessary costs and Tribunal resources.
If there are no preliminary issues, then the Employment Tribunal will issue directions in the Case Management hearing, including identifying a final hearing date and the number of days required for the hearing of the claim. Generally, then, directions normally take the following format. A date is identified for both parties to disclose to each other documents in their possession which are relevant to their claim or response to the claim, and which assists them, the Claimant or Respondent, or which assists their opponent.
The next stage is normally for a date set for the parties to identify their witnesses and a date to provide witness statements to their opponent and to the Employment Tribunal. There is occasionally a further date set for the parties to provide further witness statements in response to the opposing parties initial witness statements.
Once witness statements have been exchanged the next direction is normally to identify the date for preparation of the hearing bundle. The parties will be required to co-operate as to the documentation that is included in the bundle, and which would include any relevant disclosure documents and witness statements as well as the Claim Form and Response Form and any other relevant documents that the parties rely on. There is usually a requirement that the hearing bundle pages are numbered and put into sections with an index so that the parties, any witnesses called, and the Chairperson, can easily refer to parts of it during the hearing.
Finally, a date is set for both parties to provide what is known as skeleton arguments. This is a document normally drafted by lawyer’s and which sets out submissions on the law, in this case, on unfair dismissal and an overview the salient facts of the case and where the Claimant submits that the Employment Tribunal should find that the Respondent unfairly dismissed them. These are both exchanged between the parties and sent to the Employment Tribunal in readiness for the final hearing
On the date of the hearing both parties attend with their witnesses, and all the documents to present their case. After which the Chairperson will decide whether or not the Claimant was unfairly dismissed.
Litigant in Person
A Claimant who represents themselves is known as a Litigant in Person. It will be apparent from above that the process following on from an unsuccessful mediation is to be avoided, if at all possible, settlement should always be considered at all stages of the claim even if mediation has previously been unsuccessful.
The steps above are the normal steps that a claim may take if the parties are legally represented. Yet as indicated at the outset, the Employment Tribunal is a place in which a Claimant can bring the claim themselves. It is reasonable therefore to believe that an unrepresented Claimant will be assisted to the fullest extent possible by the Employment Tribunal. The Respondent Employer will have deeper pockets allowing them to possibly instruct lawyers, whereas a claimant who has lost their job will likely struggle to do so, at least to the extent past the initial mediation stage.
It is hoped therefore that a Chairperson would assist the Litigant in Person to the fullest extent possible, in terms of modified simplified directions that are litigant in person friendly, and also to assist by ensuring that the Claimant’s case is properly understood by the Gibraltar Employment Tribunal even if it is not formulated or presented with orthodox legal argument, and that the Employment Tribunal should be prepared to ask questions of the parties to establish the facts and to come to a decision on the law, and not just leave matters to be determined by cross examination of the Respondent’s witnesses by the Claimant Litigant in Person.
Another partial solution to the difficulty above may be considering instructing an employment lawyer at the outset only to draft the Claim Form along with the particulars of claim (Section 6.2) and which sets out the Claimant’s case along with the relevant law where appropriate. It is submitted that this will put the Litigant in Person, Claimant, in the best position to formulate their claim for unfair dismissal with the law, in an to attempt to persuade the Respondent to mediate and settle.
Also, a Claimant might consider instructing a lawyer to just represent them at the final hearing, or perhaps for drafting the skeleton argument, while taking care of the administrative steps themselves.
Chris is an Employment Lawyer and Acting Solicitor of the Supreme Court of Gibraltar who specialises in Employment Law.
Are you an employee who has been dismissed? Please contact me at Phillips Barristers and Solicitors at 292 Main Street, Gibraltar. Telephone (+350) 200 73900, or email me at chris.brunt@phillips.gi for an informal discussion to see how I can assist you
Disclaimer
All opinions are my own and are provided for information only and do not constitute legal advice. Please note that the information and any commentary on Gibraltar law contained in this article are provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but I do not accept responsibility for its accuracy and or for any consequences of relying on it. The information and commentary do not and are not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal legal advice about your case or matter and not to rely on the information or comments on this site. https://www.employmentlawgibraltar.com/
