Last reviewed 24 December 2020
Should a compensation claim go to a court or tribunal? Barrister Robert Spicer explains.
Employees who have suffered injury at work, or who have been made ill by workplace conditions, may claim compensation. The case can be brought in the civil courts — or in an employment tribunal (ET) if the injury or illness is connected with an ET claim for discrimination.
The choice of court or tribunal involves consideration of the following factors.
Cost: there is no fee for ET claims but there is a fee for court claims.
Time limits: 3 months for the ET but 3 years for personal injury claims in the civil courts.
Costs risk: the ET rarely awards costs against the losing party but the civil courts normally do. Solicitors may enter into conditional fee arrangements for county court claims, but this is rare in ET claims.
Complexity: procedural matters are generally simpler in the ET.
A recent case
The 2020 case of Akay v Newcastle University illustrates the issues that can arise in relation to this choice, and the consequences of bringing proceedings in both the ET and, later, in the county court on essentially the same set of facts.
A was employed by Newcastle University from 1998 until he resigned in 2013. During the course of his employment, he repeatedly complained of bullying and harassment. He took sick leave on a number of occasions because of work-related stress.
Following his resignation, he brought claims of unfair constructive dismissal, discrimination and harassment claims in the ET. He stated that he had been diagnosed as suffering from post-traumatic stress syndrome as a result of his treatment by his employer.
He did not claim for compensation in respect of personal injury because he had been advised that injury to feelings was not the same as personal injury.
The ET struck out the harassment claim after A repeatedly failed to comply with its orders to provide further details of the claim. The strike-out was ordered on the basis of A's procedural non-compliance and a lack of reasonable prospects of success. The unfair dismissal claim was settled by a settlement agreement. Before entering into that agreement, A brought a personal injury claim against the University in the county court, based on a diagnosis of post-traumatic stress disorder.
The University applied for the county court claim to be struck out for being an abuse of process, and/or under the doctrine of res judicata, which prevents a party from re-litigating any matter already litigated. On behalf of the University, it was argued that the present claim arose out of essentially the same underlying facts as the earlier tribunal claims for harassment, in respect of which A could have claimed damages for personal injury in the ET.
The county court allowed the University's application on the ground of abuse of process. It made the point that the harassment claims had earlier been struck out by the ET as an abuse of process. Any subsequent action based on the same facts should also be struck out as an abuse of process, unless there was a special reason to allow it to proceed, which was not the case here.
A was ordered to pay all the University' s costs in accordance with the general principle in the civil courts that the losing party pays the costs of the successful party.
A appealed to the High Court. That court ruled as follows.
The county court was right to conclude that the harassment claims had been struck out by the ET as an abuse of process.
A should have brought a personal injury claim before the ET.
A had argued that he had not properly understood the nature of his psychological problems when he issued the harassment claim but this was contradicted by the evidence.
The court did not accept A's alternative explanation that he had been too ill to give instructions to his solicitors in respect of personal injury damages when he submitted those claims. There was no medical evidence to support this explanation and A's witness statement clearly stated that he had deliberately chosen not to seek compensation for personal injury. The evidence in this case was clear. A had known enough to be able to seek damages for personal injury before he started proceedings in the ET, and his explanations were not sufficient to show why he had not done so.
The county court had correctly applied a broad, merits-based assessment on the strike-out application which involved taking account of the public and private interests involved and the facts of the case, and focusing attention on the crucial question of whether, in all the circumstances, A was misusing or abusing the process of the court by seeking to raise before it an issue which could have been raised in the ET proceedings.
The costs order was upheld.
The appeal was dismissed.
The Akay case illustrates the danger of choosing not to include a claim for personal injury in an ET discrimination claim, and then proceeding in the county court.
It is important to be aware that personal injury claims involve consideration of an area of law in its own right, separate from health and safety issues.
In relation to amounts of compensation decided, the Judicial College Guidelines for the assessment of general damages in personal injury cases list the following factors to be taken into account in relation to psychiatric damage:
the claimant's ability to cope with life and work
the effect on the claimant's relationship with family, friends and those the claimant comes into contact with
the extent of successful treatment
whether medical help has been sought.