In DLA Piper’s latest case report, the Employment Appeal Tribunal considered the effective date of termination in a case in which the claimant was informed of her dismissal by her solicitor the day before she received the formal dismissal letter from her employer.
Robinson v Fairhill Medical Practice EAT/0313/12
This is an Employment Appeal Tribunal (EAT) decision in which the claimant claimed unfair dismissal and discrimination. The claimant was informed of her dismissal by her solicitor on 7 July 2011, which was held to be her effective date of termination. It found that the following day, when she received the formal dismissal letter, was not her effective date of termination. The claims were not raised until 7 October 2011 and were therefore presented one day out of time. The EAT was prepared to extend the time limit for the discrimination claim, but not the unfair dismissal claim.
This case demonstrates the difficulties of identifying the effective date of dismissal and adds to the case law in this area, following Gisda Cyf v Barratt. It also highlights the different tests that must be applied to determine whether or not an extension of time should be granted.
The grounds on which an employment tribunal can exercise its discretion to extend the time limit for bringing a claim varies depending on the particular claim.
Unfair dismissal claims
The employment tribunal will extend time in an unfair dismissal case only when it is satisfied that:
- it was “not reasonably practicable” for the claimant to present the claim before the end of the deadline; and
- while the claim was not presented before the end of the deadline, the claim was nevertheless presented within a reasonable period.
The time limit can be extended by such period as the employment tribunal thinks “just and equitable”.
Mrs Robinson was summarily dismissed for gross misconduct. She was signed off sick during the investigations and disciplinary process. Communications with her employer, Fairhill Medical Practice (FMP), occurred through her solicitor.
FMP informed the solicitor that Mrs Robinson had been dismissed via email on 6 July 2011. The solicitor told Mrs Robinson about her dismissal by telephone on 7 July and Mrs Robinson received a letter from FMP informing her of her dismissal on 8 July.
Mrs Robinson presented her claims of unfair dismissal and discrimination to the employment tribunal on 7 October 2011. FMP argued that her claims were time barred.
At the employment tribunal, the following questions were addressed:
- Were the unfair dismissal and discrimination claims, presented on 7 October 2011, within the relevant three-month time limit?
- If the unfair dismissal claim was presented late, was it reasonably practicable for the claim to be presented within the three-month time limit and, if not, should any further reasonable period have been permitted, and was it presented within this period?
- If the discrimination claim was presented late, was it presented within a period that the employment tribunal regarded as just and equitable?
To answer these questions, the employment tribunal had first to consider the effective date of termination. It found that the solicitor had been acting as Mrs Robinson’s agent and the effective date of termination was 7 July 2011, when the solicitor told Mrs Robinson of her dismissal, and not on 8 July 2011, when the formal dismissal letter was received. The presentation of the claims on 7 October 2011 was therefore out of time.
The employment tribunal found that it had been reasonably practicable for Mrs Robinson or her solicitor to have presented the unfair dismissal claim on time. The employment tribunal also held that it would not be just and equitable to extend the three month limit in this case. Mrs Robinson appealed to the EAT.
The EAT considered the Supreme Court’s decision in Gisda Cyf v Barratt, that a dismissal was effective once it has been communicated to the employee or she had a reasonable opportunity to know of it. In this regard, being told of the dismissal by her solicitor was sufficient, even though the dismissal letter arrived the following day.
The EAT dismissed the appeal concerning the unfair dismissal claim, but upheld the appeal against the decision to dismiss the discrimination claim as out of time. It noted that the failure of the solicitor to raise the claim in time ought not to be held against Mrs Robinson as a factor on whether or not it was just and equitable to extend time.
This case highlights the uncertainties that can arise when informing an employee that they have been dismissed by a third party. It also demonstrates that, in discrimination claims, tribunals may be more willing to exercise their discretion to extend time, to allow a claim to proceed, rather than just limiting an employee’s options to a potential claim against his or her solicitor. Therefore, employers cannot be sure that a claim that is presented out of time is automatically barred from proceeding due to the operation of the tribunal’s discretion.
Carlene Nicol is an associate and Paul Brown is a senior associate at DLA Piper
|More XpertHR case law reports on the effective date of termination|
|Notification of termination of employment The Supreme Court decision in Société Générale, London Branch v Geys dealt with the notification of termination of employment and pay in lieu of notice.
Effective date of termination for unfair dismissal The EAT decision in Parker Rhodes Hickmotts Solicitors v Harvey covers the effective date of termination for unfair dismissal purposes.
Case round-up Horwood v Lincolnshire County Council is another case in which the EAT considered the effective date of termination when an employee resigned.