McKee v J O Sims Limited, Employment Appeal Tribunal, 16 March 2006
Mr McKee brought a number of tribunal claims, including one of unfair dismissal, against his employer on 10 December 2004. He alleged he had been dismissed on 19 November. However, his employer had continued paying him until 24 December. On 30 December, the employer’s solicitors lodged a response to his tribunal claim.
In answer to the question: ‘Do you agree that the claimant was dismissed?’, it answered ‘no’. In answer to the question: ‘Are the dates of employment given by the claimant correct?’, it answered ‘yes’. However, the latter response was a mistake.
At a pre-hearing review, the tribunal determined that McKee’s dismissal did not take place until 24 December. This decision was sent to all parties on 3 May.
On 16 May, McKee’s solicitors presented a second tribunal claim. The employer argued this claim was presented out of time as it should have been presented by 23 March 2005. The tribunal had to decide whether it would have been reasonably practicable for the complaint to be presented by 23 March and, if not, whether the further period until 16 May was a reasonable one. It held that due to the inconsistent assertions made by the employer about precisely how and when the employment had come to an end, McKee’s second claim would be allowed outside the time limit. Sims then appealed.
The appeal was unsuccessful. The complaint was presented less than two weeks after the tribunal’s decision on 3 May – within a reasonable time.
The tribunal noted that had the employer’s tribunal response form to the first claim been clear in asserting that the termination had taken place on 24 December 2004, the outcome of the case might have been different.