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.
The claimant was employed by the first respondent, a furniture design company, as a product administrator. The second respondent was the director of the company, who had a disability discrimination claim brought against him personally and the third respondent was an insurance company who had a contract to provide insurance covering liability to pay compensation in respect of the claims.
The claimant, after a series of disputes with management, resigned from his position and claimed constructive dismissal. However, the basis of this action was not on the issues of unfair dismissal or the disability discrimination claim brought but whether the third respondent (the insurance company) could be found liable in the Employment Tribunal. The reason this had become the primary issue was the liquidation of the first respondent which had started during the proceedings.
At first instance, the ET stated that they had no power to determine claims between the claimant and the insurance company as it had nothing to do with a contract of employment but rather a contract of insurance between respondents. They sought to stay the proceedings pending a claim in the County Court on that contract.
The claimant appealed the decision of the ET stating that the Third Parties (Rights Against Insurers) Act 2010 gives a wide power to ‘courts’ to determine a dispute relating to insurance cover, especially when the rights had then vested into the claimant. The EAT focused on the wording of Section 2(6) of the 2010 Act (which applies equally in Northern Ireland as it does in England and Wales) which states:
Where the court makes a declaration under this section, the effect of which is that the insurer is liable to P, the court may give the appropriate judgment against the insurer.
In interpreting this section, the EAT held that the meaning of ‘court’ would include the Employment Tribunal meaning that they had the power to determine the issue of insurance cover. For this reason, the stay that had been ordered by the ET was set aside and the appeal was allowed.
Practical Lessons
This decision demonstrates the extent to which the Third Parties (Rights Against Insurers) Act 2010 operates in relation to the Industrial Tribunal. The interpretation given to ‘court’ in that piece of legislation is a wide one insofar as it also encompasses the Employment Tribunals. As the 2010 Act also covers Northern Ireland, it is also likely to cover the work of the Industrial Tribunal thus giving it wider powers. This may streamline some cases where it will not necessitate action in the County Court/High Court based upon third party insurers but rather can be dealt with in the Tribunal alongside the substantive claim.
https://www.gov.uk/employment-appeal-tribunal-decisions/mr-n-watson-v-hemingway-design-ltd-in-creditors-voluntary-liquidation-others-ukeat-0007-19-joj
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