Can employees bring an employment tribunal claim even if no compensation can be awarded?

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In short the answer is yes!  The law has been fairly settled in this regard and the cases of Telephone Information Services Ltd v Wilkinson [1991] IRLR 148 and Gibb v Maidstone & Tunbridge Wells NHS Trust [2010] EWCA Civ 678 demonstrate and confirm that irrespective of any compensation that could be awarded by a tribunal, a claimant has the right to a judicial judgment on a statutory claim of unfair dismissal.  This would also suggest that this proposition extends to other statutory employment claims where a finding of unfairness or detriment can be made but with little or no compensation to be awarded.

In the recent case of Evans v London Borough of Brent UKEAT/0290/19, an employment tribunal’s decision to strike out a claim on the basis it was not in the interests of justice for a claim of unfair dismissal to proceed was overturned on appeal.  The tribunal had concluded that there were reasonable prospects of a finding of unfair dismissal on procedural grounds but that such a finding would not lead to a financial award.  This was an error of law.  A finding of unfair dismissal alone did not preclude a tribunal from determining such a claim and this did not offend the interests of justice in proceeding with such a claim.

We are often asked to advise on claims that on paper may not be the strongest or have little monetary value.  Often such claims are progressed without the benefit of legal representation, as the legal costs in pursuing such a claim far exceed the value of any financial award.  However, this does not necessary mean that such claims should be abandoned – especially if an employee was, say, dismissed for gross misconduct but the procedure was flawed and that this could give rise to a judicial judgment of unfair dismissal, as this will go some way in repairing an employee’s tarnished reputation.  Those acting for employers facing such claims may seek to offer a low ‘nuisance’ value settlement and if this is not accepted threaten costs against the employee.  This is a fairly typical tactic and commercially it may make sense for the employee to accept the offer.  Nevertheless, in the scenario described the value of a finding of unfair dismissal may far outweigh a modest monetary offer and the employee may be within their rights to reject the offer and proceed to a hearing without fear of costs being awarded against them, as seeking a judicial judgment cannot be said to be acting unreasonably.

If you believe you have a claim for unfair dismissal, it is imperative that legal advice is obtained from reputable solicitors specialising in employment law.  Such advice is not free, but this may provide peace of mind when faced with threats from an employer’s legal representative.

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The material contained in this blog is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.