Our next case is another update concerning tribunal procedure (cheers/groans), this time focusing on the electrifying, high-octane world of limitation dates. For those of you who aren’t familiar with how limitation works for employment tribunal claims, much of the background law is summarised in our previous update of DHL v Fazackerley.
The question in this case is:
If an employee misinterprets their dismissal date, is it reasonable for them to use this date and issue in an employment tribunal claim after their limitation period has expired?
Mr Brophy, the Claimant, worked as a meter installer for Lowry Beck Services Ltd, the Respondent. The Respondent provides meter services for utility companies. The Claimant suffered from severe dyslexia which impacted his ability to process information unless it was confirmed in writing. The Claimant often allowed his brother, Michael, to carry out important tasks on his behalf.
The Respondent received a complaint from a customer about the Claimant’s conduct. Disciplinary proceedings ensued and the Claimant was subsequently dismissed verbally by telephone on 29th June. This decision was confirmed in writing by a letter dated 4th July. The letter stated the dismissal took effect from 29th June.
The Claimant wished to challenge his dismissal, and, due to his disability, passed the letter onto his brother. The Claimant’s brother had no legal qualifications but did have a friend who did. The brother erroneously interpreted the letter to mean that the Claimant was dismissed on 4th July.
The Claimant’s brother used this incorrect date when writing to the Respondent. He also contacted his legally qualified friend who informed him that the limitation period would end in early October based on a July dismissal date.
The Claimant’s brother then commenced ACAS Early Conciliation on 30th September. This was two days late based on the Claimant’s actual dismissal date but three days before the misinterpreted limitation period ended.
The Early Conciliation certificate was issued on 13th November and the Claimant’s brother lodged an ET claim on 5th December. The Respondent argued that the claim was issued out of time and should not be allowed to proceed.
At a preliminary hearing the Employment Tribunal held that the Claimant was dismissed on 29th June. However, the ET held it was not reasonably practicable for the Claimant to submit his claim on time due to his dyslexia and his brother’s genuine belief that the Claimant was dismissed in July.
The Respondent appealed but the EAT rejected the appeal. The Claimant struggled to retain information so the call to dismiss on 29th June might not have been properly processed. The Claimant’s brother was not legally qualified and genuinely believed the date of the dismissal letter was the date of dismissal. Therefore, it was reasonable for the Claimant to bring the claim out of time.
The takeaway point:
In this case yes, a misinterpreted dismissal date was not enough to time bar the claim. However, in this case the Claimant was disabled and deferred decision making to his brother, who was not legally qualified. Employees in different circumstances might not be afforded the same leeway.
This is another example of the Employment Tribunal allowing litigants in person/litigants represented by lay people the benefit of the doubt. As such, HR professionals dealing with self-represented employees should be wary that their mistakes will understandably not be dealt with as severely.
It is also worth noting that the Respondent could have rectified the brother’s mistake after his letter to the Respondent and/or during ACAS Early Conciliation. Had they done this then perhaps the time and cost of a preliminary hearing could have been avoided.