employment law

Is it possible for an unfair dismissal claim to be accepted after six years?

Iphone_calendar_screenIf you ask most people involved in dealing with employment law matters they will correctly tell you that the time limit for commencing a claim for unfair dismissal is three months from the date of termination of employment. As we have seen on many occasions the time limit is applied very strictly and just about the only basis on which it can be extended is if it was not reasonably practicable for the claim to lodged within the time available.

The admittedly unusual case of Miss B Higgins v The Home Office and The Attorney General shows the extent to which a time limit can be extended in appropriate circumstances. Miss Higgins claimed that she was constructively dismissed by her employer in  December 2007 but she did not present her complaint of unfair dismissal to an employment tribunal until 27 January 2014. The grounds of claim were pretty unclear and there was at least one inadmissible claim for compensation for loss suffered by the claimant’s mother. Unsurprisingly the claim was rejected by an employment judge as an abuse of process because (i) it was brought outside the applicable time limits,(ii) the remedies sought did not appear to be those that a tribunal could award and (iii) the claimant did not appear to be claiming unfair dismissal. Miss Higgins appealed to the Employment Appeal Tribunal.

She had worked as an immigration officer for the Home Office from 2003 until December 2007. She maintains that in the course of her employment she applied for a position with MI5. Judge Serota QC noted that in the course of her employment Miss Higgins had mental health issues and in October 2007 had been admitted to a psychiatric hospital or unit where she had remained for several days. She tendered her resignation on more than one occasion but was allowed to withdraw the resignation. However, when she resigned on 26 or 27 November 2007, expiring on 23 December, she was not allowed to withdraw the resignation. This was the basis of her claim for constructive unfair dismissal.

In early 2008 she instructed solicitors in connection with her potential claim but maintained that she was too unwell to commence proceedings. The standard three months’ time limit expired on 22 February 2008 but the ET1 was not lodged until 27 January 2014.

discrimination discrimination issues employment law religion or belief sexual orientation

Priority of discrimination protection – religion, sexual orientation and political belief

Ashers-bakeryI expect that most readers will have seen some of the widespread media coverage concerning the Northern Irish case of Lee v Ashers Baking Co Ltd and others. I have pointed out for some time that, particularly in the context of protection from discrimination relating to religion or philosophical belief, there is an obvious risk that such protection will at times collide with the protection from discrimination on other grounds, an obvious example being sexual orientation. Which one is to prevail? An almost impossible question for a court to rule on you might think, and so it has turned out. Unsurprisingly the Bakery announced on 28 May that it intends to appeal the decision.

District Judge Brownlie, sitting in the County Court in Northern Ireland, had the unenviable task of deciding whether the rights of a gay man who wanted a cake decorated with a pro-gay message should take precedence over the objections of a bakery which objected on religious grounds. Although it is not an employment case, the relevance for employment disputes concerning competing and conflicting claims for protection from discrimination is obvious.

I think that it is fair to say that the parties were at opposite ends of the relevant spectrum. Mr Lee is associated with an organisation called Queerspace which “seeks to increase visibility of the [LBGT] community in a positive manner and to counteract the disregard and negative images presented to the general public over the past centuries”. On the other hand the bakery business derived its name from Genesis, Chapter 49:20 which says “Bread from Asher shall be rich, and he shall yield royal dainties”. In many respects the details of the judgment are fairly unimportant and, of course, as a decision of the County Court in Northern Ireland it is not binding on any other courts. The judge found as facts that the Bakery cancelled the order because of Mr Lee’s support of a political campaign for gay marriage and the primary reason for doing so was as a result of genuine and strongly held religious beliefs, including a belief that the business should be run in accordance with God’s wishes. As put by their solicitors:

In fulfilling your client’s order, our client would have been acting so as to promote and support your client’s political campaign for a change in the law of Northern Ireland so as to enable same sex marriage which objective is directly contrary to our client’s religious faith and conscience. Our client is entitled to refuse to create a polemical message which conflicts with their religious belief and conscience.

Judge Brownlie pointed out that the crucial question in any case of alleged discrimination is to ask why the claimant received less favourable treatment.