This week we are looking at tribunal procedure and limitation dates. The case is actually one we have covered when it was a mere Employment Tribunal claim, since then the employer has appealed the decision in both the EAT and Court of Appeal.
Limitation dates are the final date a Claimant has to commence ACAS Early Conciliation proceedings and present an Employment Tribunal claim. A bank holiday weekend is probably not the time to bore you with a refresher on limitation dates but, anyone who is looking for some good night time reading, may want to check out our round up of DHL v Fazackerley and Luton Borough Council v Haque for a bit of background on how a limitation date is calculated.
The question this week is:
Can a misunderstood termination date justify an extension of a Claimant’s limitation date?
Is it sensible to appeal a decision on the above to the Court of Appeal?
Lowri Beck Services Ltd v Brophy
Mr Brophy, the Claimant, was dismissed by Lowri Beck Services, the Respondent, over the telephone on 29 June. This was confirmed in writing on 4 July, stating employment terminated on 29 June 2017. The Claimant was dyslexic and passed the letter onto his brother so he could assist him in an ET claim.
The brother erroneously misinterpreted the date of termination as 4 July. This error was relayed to both the Respondent and a legally qualified friend. The Respondent did not correct the erroneous date of termination. The legally qualified friend correctly told the Claimant’s brother that he needed to start EC before 3 October based on a dismissal date of 4 July.
The Claimant started ACAS Early Conciliation on 30 September, before the incorrect limitation date but two days after the correct one. After lodging a claim, the Respondent then applied for the Claimant’s claim to be dismissed as out of time.
The ET held that as the Claimant and his brother had not been legally qualified, and, because the Claimant was disabled meant it was not reasonably practicable for the Claimant to present his claim on time.
The Respondent appealed and the EAT rejected the appeal. They appealed again and the Court of Appeal also rejected the appeal. The CoA held that the ET was within its powers to extend the limitation period by two days in the circumstances.
The takeaway point:
In this case, yes a misinterpreted termination date can result in a claim being allowed out of time. However, had the Claimant not been disabled, or, been legally represented, it is likely such an extension would not have been granted. However, the general direction of travel in ET claims is that leniency is shown towards litigants in person or claims that are only just out of time.
One reason why claims are often not allowed out of time is because the delay means too much time will have passed between the incident that led to the claim and the hearing. This will make it difficult for witnesses to accurately recall events and thus render it difficult for a judge to make findings of fact. Therefore, the Respondent’s argument to dismiss the claim for being two days late holds little truck given they have held the claim up by nearly three years appealing a procedural point on limitation all the way up to the Court of Appeal.
Additionally, the time and cost spent on this procedural matter is almost certainly disproportionate to the value of the case. Should the Claimant bring and succeed in a discrimination claim, it is likely a substantial amount of interest will be awarded due to the delay between incident and remedy. Spending so much time and cost on a procedural matter is over-lawyering that has not assisted the employer. Dropping the preliminary matter of limitation and proceeding to the liability and remedy element of the claim would have almost certainly yielded a cheaper and more expedient resolution to the claim. Not every battle is worth contesting.