News and Insights

The Jersey Employment & Discrimination Tribunal (the “Tribunal”) is a no-cost jurisdiction: there is no fee to submit a claim and the Tribunal cannot award costs. Essentially anyone can submit a Tribunal claim, no matter how weak a claim may be.

The rationale behind this is to ensure that Jersey’s employment and discrimination legislation “has teeth”: the Tribunal is very accessible and often claims are pursued by litigants in person.  This is arguably one of the greatest strengths of our Tribunal, which is very busy given the size of the Island’s workforce.

Is such accessibility always a positive?

Ms Downer brought the following claims against her former employer and two of her former colleagues:

1. Unfair dismissal by reason of discrimination (contrary to Articles 70A and 73 of the Employment (Jersey) Law 2003 (“EJL”).
2. Harassment (contrary to Article 28 of the Discrimination (Jersey) Law 2013 (“DJL”).
3. Victimization (contrary to Article 27 of the DJL).
   The Tribunal’s judgment notes that a complaint made by Ms Downer had been “vexatious and vindictive”.  During the hearing, the Deputy Chair told Ms Downer that her cross-examination of a witness had been “unnecessarily aggressive”. Ms Downer refused to take any further active part in the proceedings after her application for the Deputy Chair to recuse himself was refused.  
   In rejecting all of Ms Downer’s claims the Tribunal held that the litigation had been a “tactical claim that on the balance of evidence was doomed to failure.”

The Tribunal went on to comment more generally on the Tribunal’s no-cost regime:

“In our view one of the great strengths of the Tribunal is that it is a ‘no-cost’ jurisdiction which means that anyone can bring proceedings without fear of severe financial penalty in the event that they fail. While this is a great strength of the Tribunal it also has a significant downside in that it enables a person, should they so wish, to bring proceedings as a tactical measure, in order to exert financial and/or resource pressure on employers so as to force them into settling proceedings or making concessions (such as allowing someone who has been dismissed back to work).”

The Tribunal went on to say that examples of tactical claims are rare but added:

“…it is an inescapable fact that legal proceedings (or the risk of legal proceedings) is a part and parcel of being an employer.”

Given the Tribunal’s comments, one has to ask whether the Tribunal’s case management powers are adequate – perhaps it is time for a review?