Who says companies can’t win in the Employment Tribunal?

When I take on new clients who have had experiences with the Employment Tribunal before, they often say to me it is impossible to win as the system is heavily geared toward favouring employees. This is simply not the case and at Britton and Time Solicitors we are #successful more often than not in all our employment-related disputes.

The recent #success in the Rogers v. Leeds Laser Cutting Ltd is a fine example of how well thought-out legal arguments, a firm understanding of the #law, evidence and what has transpired factually will result in a #win for the employer.

So, what happened?

When the pandemic hit in March 2020, Mr Rogers told his employer in a text message that he had “no alternative but to stay off work until the lockdown had eased”. He claimed that his five-year-old son had sickle cell anaemia and was at high risk.

At no time did Mr Rogers, on his case, ask his employer what measures had been put in place in the workplace to ensure his safety. Instead, Mr Rogers' refusal to come to work was simply a general one: that COVID was in circulation and therefore he couldn't come to the workplace because of the risk.

The reality was strikingly different, his employer had adhered to all of the government guidelines, as well as the fact that the workplace was a warehouse roughly half the size of a football pitch; it was an open space and well ventilated.

Suffice to say in January 2021, we saw the Employment Tribunal reject Mr Rogers' claim in its entirety. Mr Rogers had "changed his story" on two previous occasions and amended his pleadings and then, before the Tribunal, changed his story yet again and provided contradictory evidence.

Mr Rogers didn’t leave it there however, he appealed to the Employment Appeal Tribunal who also rejected Mr Rogers' claims that the working environment was unsafe and he should not have to go there.

After the Employment Appeal Tribunal, we all thought that would be the end of it but no, Mr Rogers then took his claim further and appealed to the Court of Appeal. You will appreciate that in England and Wales there are always routes to appeal and sometimes the losing party just can't let it go. In any event, Mr Rogers has been unsuccessful again, and the Court of Appeal rejected his claim once more. Three wins in a row for the employer, not a bad result.

Is it over?

Mr Rogers is still at liberty to apply to the Supreme Court to hear his case for a final decision. It’s no wonder employers get downhearted and think that the system is geared toward employees when they have so many avenues of appeal. What also needs to be considered?is the legal costs. Winning is great, but it can taste bittersweet when you look down at your legal fees.

You see, the Tribunals in England and Wales are a cost neutral environment, which means when you win you are not automatically entitled to your costs - instead you have to fight for them. A good argument to be awarded your legal costs is usually that the other party's case was so hopeless that they were never going to win and that their conduct in pursuing the case was unreasonable.

?? The good news is that in the Court of Appeal, when you win, you are entitled to your costs.

The Law:

The boring bit for many; Mr Rogers brought his claim under Section 100 Health and Safety Cases (1)(d) or (e) of the Employment Rights Act 1996.

What does this section of the act say? It basically sets out protection for employees who feel that the workplace is dangerous, and that the danger is so serious and imminent that it would be unreasonable for them to have to work under those conditions.

Had Mr Rogers proved that the workplace was dangerous, his employer would have automatically unfairly dismissed him and his claim would have been successful. The reality of the case was quite different and on the evidence the workplace was a compliant and safe environment.?

Further, the Tribunal found that Mr Rogers never raised any meaningful concerns with his employer or complaints about any imminent danger in the workplace. The judge also found that Mr Rogers' decision not to go to work had not been linked to the working conditions but instead concerns about the virus in general, which were not attributable to the workplace.

The importance of this case is that where employers genuinely do everything correctly, there can be no criticism of them and where they are faced with difficult and obstinate employees, the law and system will protect the employer. I should also say that it is more than helpful to have a reputable law firm onside to defend any false and unfounded allegations and protect prudent employers. ??

Share this article with your network to show them that there is justice when you're subjected to an unfair and false claim - you just need the right #lawyers.