no time extension for litigant in person

Posted on July 26, 2012 by Martin Malone

A forensic accountant who had won an earlier victimisation claim against one of her employers on the basis of an unfair reference has had her appeal to the Employment Appeal Tribunal struck out because she filed it outside the 42 day time limit for appealing. Whilst she was not a lawyer, the EAT observed that she had considerable experience of litigation and there was no reason to allow her to appeal out of time against an order striking out tribunal claims which were too unclear for the tribunal to work out what tribunal jurisdiction applied.

Although the judgment of the EAT can be read for entertainment value, there is a serious point to be made. While a lot of what the Claimant had submitted could only be described as "gibberish", the EAT was not prepared to say that there was no possible genuine claim buried amongst the material she had put forward:

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employment tribunal claims: do the latest changes really take account of the “human factor”?

Posted on October 26, 2011 by Martin Malone

You know that moment when someone voices something you’ve been thinking for a while? Lord Justice Mummery hit the nail on the head for many who have experience of the employment tribunal system in Gayle v Sandwell and West Birmingham Hospitals NHS Trust when he responded to criticisms about how long the case had taken to progress through the system and how much money had been spent on it.

On the face of it, the criticism was a fair one – the claimant unsuccessfully appealed twice after being unsuccessful in her claim that she was unfairly dismissed for taking unauthorised time off for union duties at a three week hearing, with the final decision being made nearly five years after the events in question. But as Lord Justice Mummery made clear, this case was very much the exception to the rule; few tribunal cases last longer than a day or two; still fewer go to one level of appeal, let alone two, and he pointed out that there are a range of reasons why cases such as this one take a long time to resolve. In particular, he remarked that it is difficult to achieve a speedy, inexpensive outcome where one or more party to the proceedings is determined to take every point of law, evidence and procedure. Continue reading →

unfair dismissal as a result of claiming to have been unfairly dismissed

Posted on September 26, 2011 by Martin Malone

The case of M-Choice UK Limited -v- Aalders, which was recently considered by the Employment Appeal Tribunal, demonstrates the complexities which can arise when trying to establish when someone was dismissed. The date of termination can be vital in determining whether or not a claim of unfar dismissal can be maintained.

Ms Aalders commenced employment with M-Choice on 1 February 2010. She was entitled to six months’ notice of termination of employment. On 26 July 2010 she was sent a letter which purported to give notice of termination, stating “as from 26 July 2010, ending the work relationship as per (sic) 1 February 2011 at the latest”. Continue reading →

when does employment end?

Posted on May 23, 2011 by Martin Malone

It can be critically important in employment law to know when a person’s employment came to an end. This is mainly because there are strictly applied time limits for bringing certain claims in employment tribunals based on the date on which employment was terminated. For example, an unfair dismissal claim must normally be presented to an Employment Tribunal before the end of the period of three months beginning with the “effective date of termination”. The power of employment tribunals to extend the time limit is extremely limited, meaning that it can be very difficult to persuade them to do so.

For this reason, and for other reasons such as calculating the length of “continuous employment” required for accruing employment certain rights, it can be very important to be clear about how to ascertain the “effective date of termination”.

An EAT case in April 2011 has helped clarify this point. For many years it has been established law that where an employee is dismissed by word of mouth notice is deemed to start from the beginning of the day after it was given. This is because the law takes no account of fractions of a day so the day on which notice is given does not count. However, it has not been certain that the same rule applies where the dismissal notice was in writing, not least because written notices often specify the date on which the notice period starts and/or ends.

In the case in question, an employment tribunal had refused to hear an employee’s unfair dismissal claim because, according to the tribunal, the claim had been lodged one day out of time. The claim had been lodged on 2 May 2009. The employer pointed out that the emailed dismissal letter giving the employee three months’ notice of dismissal had been received by the employee on 3 November 2008. According to the employer this meant the effective date of termination was 2 February 2009 and the last day for filing an unfair dismissal complaint was therefore 1 May 2009. As the claim had been filed on 2 May it was out of time. The employment tribunal accepted this argument, refused to allow an extension of time and dismissed the claim.

The employee appealed to the EAT. He won.

In a fully reasoned decision the EAT made it clear that, unless there is some agreement or stipulation to the contrary, the same rule about when notice starts to run applies to written notices of dismissal as to verbal notices. So in both cases the default position is that notice starts to run at the beginning of the day after it is given. Therefore in this case the notice period ran from 4 November 2008, not 3 November, so the effective date of termination was 3 February 2009, not 2 February. The last day for filing an unfair dismissal claim was therefore 2 May 2009, meaning that the employee had filed his claim in time after all.

For practical purposes, a lesson to be learned from this case (Wang v University of Keele) is that it will generally be prudent for an employer to stipulate the intended date of termination in any dismissal letter. That will generally avoid any uncertainty. The other, more general lesson, for both employers and employees is to be fully aware of the great importance of the statutory time limits and the fact that they are generally very strictly applied by employment tribunals.