If I’d been given £1 each time a client had asked me “what are my chances?” in bringing or defending a claim or in adopting a particular strategy, I wouldn’t be writing this now; I would be rich enough to have retired. But I wasn’t and I haven’t.
The reason is that most lawyers are programmed not to take chances and not to speculate, other than on the most unusual occasions (and then with a disclaimer, or even an indemnity).
Imagine my surprise, then, to have not one, but three recent developments where the employment tribunals have been referring to percentages and chances in their judgments!
Unfair Dismissal: in Creditsights v. Dhunna the Court of Appeal took the broadest approach and decided that if someone (in this case a US citizen) who had been employed by a UK company but worked abroad (i.e. outside Great Britain) could establish “much stronger connections both with Great Britain and with British employment law than with any other system of law” then the chance of the UK employment tribunals having jurisdiction to deal with any dismissals was high. So he could bring a claim. This isn’t quite the same as adopting a 60/40% rule, but the principle isn’t far removed.
Discrimination and Unfair Dismissal: in Fuller v. United Healthcare Services Inc.,the Employment Appeal Tribunal decided that someone (another US citizen) who had been employed by a US company but worked in the UK for about 49% of his time (i.e. a lot) hadn’t established enough of a connection with Great Britain. So he couldn’t bring a claim. This is an interesting example of when an actual percentage was used to justify a decision.
TUPE: in Costain v. Armitage and ERH the Employment Appeal Tribunal decided that someone who spent 67% of his time working on a project that transferred under TUPE didn’t also transfer his employment from the outgoing employer to the incoming contractor, because the amount of time spent immediately before the transfer was just a snapshot and didn’t reflect the extent to which he was assigned to the activity overall; which, in turn, meant that someone who had spent much less of their time on the same contract might well have transferred their employment.
Confused? I’m not surprised. But don’t be – the fact of the matter is that there’s no rhyme or reason for the differences in approach where one of the roles of the courts and tribunals is to bring certainty to users of the court service. Instead, just remember to take the maths as a starting point and look at the reality of a situation – there are, as you’ll know, lies, damned lies and statistics.