Advice on court, doctors notes, and facility time By Terry Brandon, BALPA Head of Industrial Relations Q I have heard BALPA talk about tribunal and county court hearings - can you explain which court hears which case? Most employment-related cases are heard at the employment tribunal, such as unfair dismissal, wrongful dismissal, unauthorised deduction of wages, and discrimination cases. Many breaches of contract claims are heard at county court because tribunals are only allowed to hear a claim for breach of contract following a dismissal. BALPA will consider the county court route if the member has a high-value claim, since damages for breaches of contract in the tribunal are limited to 25,000. The county court, however, is a costs jurisdiction, which means, if a case is lost, a claimant would be liable to pay for a significant proportion of the other sides legal costs. Therefore, only claims with very good prospects of success should be considered for BALPA funding for the county court route. Generally speaking, the employment tribunal is the preferred destination for employment-related matters, because the legal costs are borne by each side; that means, if a claimant is unsuccessful at a tribunal, there would not be any liability in ordinary circumstances to pay the employers legal costs. Claims for personal injury (including psychiatric injury) are brought before the civil court, unless the case includes injuries caused by a breach of the Equality Act 2010, in which case it would be heard in a tribunal setting. Health and safety has a separate enforcement system the Health and Safety Executive. Q I have been off work with an injury to one of my legs and now wish to return to work, as I feel much fitter and my physiotherapy has worked well. However, I am unable to get a fit note as my doctor is off sick and my local practice has a long waiting list. Can I get a fit note elsewhere? I N D US T R I A L I S S U E S Know your rights Yes, from July 2022 a fit note can be signed by physiotherapists, occupational therapists and pharmacists, as well as doctors, so it may be worth going back to your physiotherapist for help. Please bear in mind that you may benefit from a phased return to work; highlight this to your healthcare professional if you feel this would be of benefit to you. You may also wish to engage your AME. Q I am part of the Company Council and we wish to seek additional facility time so we can discharge our duties more effectively. Our recognition agreement is vague on this issue and our employer takes a hard line on release. Is there a legal framework that should be used rather than repeatedly making requests? This question is frequently asked. Union reps of independent unions recognised by the employer have the right to time off with pay, based on their average earnings, to carry out trade union duties (section 168, Trade Union and Labour Relations (Consolidation) Act 1992). The issue arises because the legislation says paid time off must be reasonable in all circumstances. What may be reasonable to the union is unlikely to be reasonable to the employer. Many Company Councils have built a business case for facility time and have secured an agreed schedule of regular meetings. The employer should also release reps for collective bargaining and consulting on issues such as redundancy. Accredited reps are also permitted time off with pay to represent members on matters such as disciplinary and grievance including preparation/ briefing time. Your National Officer can support your Company Council in approaching your employer to look at improving current arrangements. Experience shows us that some employers look at minimum legal levels as targets, which will be restrictive unless challenged. If you have a question youd like to put to Terry or any of our other BALPA experts, email TheLog@balpa.org 11 THE LOG Win 24 pp10-11 Know your rights.indd 11 01/12/2023 14:35