When time starts running for the purposes of bringing an Employment Tribunal claim

In this month’s E-News, we consider when time starts running for the purposes of bringing an Employment Tribunal claim following notification of dismissal; whether an administrator’s dismissal of employees was an Economic Technical and Organisational reason pursuant to TUPE; and whether a refusal to allow civil partners to stay in a hotel amounts to discrimination on the grounds of sexual orientation. In the news, we look at Employment Tribunal statistics published by the Ministry of Justice and a judicial review from a firm of solicitors arguing that the cap on the compensatory limit is unfair.

Time limit to bring an Employment Tribunal claim

There are strict time limits within which a Claim Form must be presented to the Employment Tribunal. An employee must bring a claim for unfair dismissal and/or discrimination within three months less one day from the dismissal or the discriminatory conduct. The Employment Tribunal may consider a claim out of time if it was not reasonably practicable where the complaint is of unfair dismissal and where the complaint is one of discrimination, the hurdle to overcome is whether it is just and equitable to extend time.

The Employment Appeal Tribunal considered in the case of Robinson v Fairhill Medical Practice whether the effective date of termination was the date it was communicated to the Claimant by a third party or when she received the official letter from her employer after that date.

The Claimant was off sick and was communicating with her employer via her solicitor. She was summarily dismissed for gross misconduct. The Claimant’s solicitor received notification of the dismissal on 6 July and advised the Claimant verbally on 7 July. The Claimant received the letter from her employer notifying her of the dismissal on 8 July.

The Claimant submitted a claim for unfair dismissal and disability discrimination on 7 October.

The matter was listed for a Pre-Hearing Review to determine what the effective date of termination as the employer argued that the claims were one day out of time.

The Employment Appeal Tribunal held, following the decision in Gisda CYF v Barratt that dismissal was effective when it is communicated to an employee or she has had reasonable opportunity to know of it and held that communication of dismissal through a third party suffices as the effective date of termination. The Employment Appeal Tribunal held that the claim for unfair dismissal was out of time, but extended time for the discrimination claim.

This decision highlights the importance of ensuring that any dismissal is conveyed to the employee in person. If the dismissal is communicated via a letter, it is difficult to ascertain when the employee had knowledge of it. Furthermore, the case highlights the stringent test used to grant an extension of time for discrimination claims compared to that of unfair dismissal claims.

Whether an administrator’s termination of employees amounted to an ETO reason

In the case of Crystal Palace FC Limited and Another v Kavanagh and Others, the Court of Appeal considered whether the dismissal of employees that were carried out by an administrator before the sale of an insolvent football club were automatically unfair under TUPE 2006. This case was reported in the April 2013 edition of E-News. In April 2013, the Employment Appeal Tribunal held the dismissal was not an economic, technical or organisational reason entailing a change in the workforce, it held that the decision was simply to preserve the business so that the business could be sold and therefore the dismissals were unfair.

The matter was appealed to the Court of Appeal and the Court of Appeal overturned the Employment Appeal Tribunal’s decision and has reinstated the Employment Tribunal’s decision that dismissal of employees of an insolvent football club shortly before the business was sold was not automatically unfair and that the dismissal was for an economic, technical or an organisational reason.

This is a welcome decision for administrators whose primary purpose is to rescue the company in administration and sell as a going concern. This decision will mean that liability will not transfer to the purchasers of the business and therefore making the business sale achievable.

Whether a refusal to allow civil partners to stay in a hotel amount to discrimination on the grounds of sexual orientation

This was considered in the Supreme Court earlier this week.

Mr and Mrs Bull ran a hotel, which they also lived in. Their Christian religious beliefs meant that they would not permit unmarried couples to share a double bed in their hotel. This policy which was applied to unmarried heterosexual and homosexual couples, was made plain on the hotel’s website and had been operated for many years. Civil Partners, Mr Preddy and Mr Hall had reserved a double bedroom. They were told when they arrived that only married couples could stay in a double bedroom. A claim was brought by Mr Preddy and Mr Hall against Mr and Mrs Bull on the grounds that they had discriminated against them on the grounds of their sexual orientation. The Supreme Court held that Mr and Mrs. Bull had directly discriminated against Mr Preddy and Mr Hall. Their refusal to provide a double room to anyone who was not married was less favourable treatment on the grounds of sexual orientation despite their Christian beliefs.

This decision confirms that whether you are in an employment setting or offering services you must do so in a non-discriminatory manner.

In the news

The Ministry of Justice has published statistics regarding the number of tribunal claims received between the period July and September 2013. The key findings are:

Tribunal receipts for July to September were around 40,000.

The Employment Tribunal received an average of 17,000 claims per month between January and May 2013.

In June 2013, there were 25,000 claims and in July 2013 there were 17,000.

In August 2013, there were 7,000 claims and 14,000 in September 2013.

This suggests that there appears to be a decline in the number of tribunal claims received, and perhaps the introduction of Tribunal fees has had an impact. However, this information should be treated with some caution, as there may be claims that have been filed but not entered into the system.

Judicial Review of the compensatory limit

The maximum compensation that an employee can seek to recover is £74,200. In July this year, the Government reduced the cap on any award for a successful claim for unfair dismissal to the lower of £74,200 or one year’s salary.

A firm of solicitors, Compromise Agreements Limited, which represents claimants, has applied for permission from the High Court to apply for a judicial review of the Government’s decision. Their argument is that the amended cap discriminates against older people as older people are more likely to be out of work for more than 1 year and therefore would not be eligible to more than a year’s compensation with the introduction of the new cap.

Watch this space for further news and developments on this interesting case.

If you have any questions, then please do not hesitate to contact Sejal Raja.

Sejal Raja
E: sejal.raja@rlb-law.com
T: 020 7227 7410

November 2013

© RadcliffesLeBrasseur


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.