Ever been in a situation where you are expecting a Tribunal claim from a troublesome former employee and you have a date three months less one day after dismissal circled in your calendar?
Well the case of Robinson v Bowskill and ors is a recent Employment Appeal Tribunal (EAT) case which involved just this kind of situation and which provides a useful update about when you can breathe a sigh of relief because you are out of the woods in relation to a claim for unfair dismissal.
In order to establish when the three month limitation period for an unfair dismissal claim is up the first thing that a Tribunal needs to decide is the date of termination. Established case law has confirmed that the summary dismissal of an employee takes effect only when the employee learns of the dismissal or has had reasonable opportunity to learn of it. The Robinson case confirms that this applies even when the employee in question is informed of the dismissal by someone other than the employer.
In this case the employee was dismissed whilst off sick with stress. In her absence her solicitor was told of her summary dismissal for gross misconduct by e-mail on 6 July 2011. The employee’s solicitor informed her of the decision by phone the next day (7 July) but the employee did not receive the letter from her employer informing her of the dismissal until 8 July. The employee’s solicitor presented unfair dismissal and disability discrimination claims on 7 October.
The employee argued that the claims were in time because as she was dismissed by letter the date of termination should be the date on which she read, or had a reasonable opportunity to read the dismissal letter. The EAT disagreed and found that because the solicitor was acting as her agent the date of termination was 7 July when the solicitor communicated the dismissal to the employee. Therefore the presentation of the unfair dismissal claim was one day outside the three month time limit, which expired on 6 October. There is no reason why the fact that an employer gives notice via a third party should mean that the knowledge of dismissal test is not met. The fact that a formal letter of dismissal had been sent but not received did not alter this position.
Once the Tribunal establishes that a claim has been brought out of time they will go on to decide whether there are circumstances which allow the time limit to be extended. The test for whether the time limit should be extended in unfair dismissal claims is whether it was “not reasonably practicable” to bring the claim in time, here the EAT found that it was not.
This is in contrast to discrimination claims where the Tribunal will decide whether it is “just and equitable” to extend time, which gives them considerably more scope to allow claimants to bring claims outside the three month time limit. The difference was highlighted in the Robinson case where the EAT allowed the employee’s disability discrimination claims to proceed even though they were on the face of it out of time.
This case is a useful reminder of the time limits involved in litigation and when notice of dismissal takes effect. The time limits for unfair dismissal claims are strict and apply from the date of dismissal regardless of any ongoing internal appeal the employee may bring. However, Tribunals can be surprisingly liberal in the interpretation of when it is “just and equitable” to extend the time limit to bring discrimination cases.
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