Expanded powers for Employment and Discrimination Tribunal

Previous position
Dismissal of complaint or response (or part of either)
Striking out
Comment

The Employment and Tribunal (Guernsey) Order 2020, which came into operation on 1 November 2020, enhances the tribunal's powers to dismiss or strike out complaints without merit.

Previous position

Prior to the new law, the tribunal could refuse to hear a complaint (filed on time and where the parties had jurisdiction) under Section 19 of the Employment Protection (Guernsey) Law 1998 only if:

• the complainant failed to provide documentation requested by the tribunal;
• the parties entered into a valid settlement agreement; or
• the application appeared frivolous or vexatious.

Dismissal of complaint or response (or part of either)

The new law allows for the tribunal to dismiss a complaint or response at the outset if it considers that there is no reasonable prospect of success. In practice, the tribunal will send a notice to the parties, ordering that the complaint or response be dismissed by a specified date (at least one month from the date of the notice) unless the complainant or respondent presents written representations to the tribunal explaining why the complaint or response should not be dismissed.

This will allow both the tribunal and affected parties to save time and costs in relation to applications that are unlikely to succeed.

Striking out

The new law further allows the tribunal, either on its own initiative or on application of either party, to strike out a complaint or response, at any stage of the proceedings, on the grounds that:

• it is scandalous, vexatious or has no reasonable prospect of success;
• the conduct of either party throughout the proceedings has been scandalous, unreasonable or vexatious;
• any provision of the Employment and Tribunal (Guernsey) Order 2020 or an order of the tribunal has not been complied with;
• the proceedings are not being actively pursued; or
• the tribunal considers that it is no longer possible to have a fair hearing.

Comment

This is fantastic news for both employers and employees with valid defences or claims facing unnecessarily difficult opponents. The tribunal's powers are now significantly increased to be able to dismiss unmeritorious claims at the outset and bring cases to an end at any stage of proceedings where the conduct of either side becomes unacceptable.

For further information on this topic please contact Rachel DeSanges, Nathalie Le Cuirot​ or Robert Clacy at Ogier by telephone (+441481 721 672) or email (rachel.desanges@ogier.com, nathalie.lecuirot@ogier.com or robert.clacy@ogier.com). The Ogier website can be accessed at www.ogier.com.