Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
This case related to the claimant, who alleged that she was a domestic servant and her husband who was a domestic servant for the respondent. This involved residing at the respondents’ property. The claimant brought various claims arising out of the employment including one relating to redundancy pay.
At first instance, the Tribunal found that the claimant had brought her claim out of time and refused to extend time on just and equitable grounds. The claimant appealed this decision on the basis that the Tribunal had also considered that the claimant was unlikely to establish that she was an employee on the basis of a lack of mutuality of obligation. The EAT considered the decision and allowed the appeal. It was found that the Tribunal had erred in its application of determining whether an extension of time should be given. The Tribunal had decided the case on the basis of a lack of mutuality of obligation but the EAT stated that in determining whether the claimant was an employee then a range of factors would actually have to be considered as per Ready Mixed Concrete. Moreover, when it comes to determining employment classification it would ordinarily require a detailed factual investigation and the need to hear oral evidence. That would not be possible at a summary hearing. Therefore, it was held that the Tribunal had erred in considering the mutuality of obligation on its own. Indeed, the Tribunal had allowed an extension of time when it came to discrimination claims that were also brought. As a result, the redundancy claim was remitted back to the Tribunal for consideration.
Practical Lessons
This case demonstrates the extent to which the Tribunal should consider the merits of the case at a summary hearing on time limits. The Tribunal was deemed to have erred in finding that there was going to be no employment relationship due to a lack of mutuality of obligation. Rightly the EAT has held that such a question would require a more in-depth examination and oral evidence. This is appropriate and as a result, any application for an extension of time should stick to the issues relating to the presentation of the claim and why it was not presented on time.
https://www.gov.uk/employment-appeal-tribunal-decisions/mrs-durga-devi-dhungana-v-1-mr-r-s-rai-2-mrs-a-rai-2022-eat-100
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