Recently I have posted two separate pieces on employment tribunal time limits and the risks to a claimant of getting this wrong. A few days ago a new decision of the Leeds Employment Tribunal was published in Gillard v Minster Law Ltd (2022). The decision is an employment tribunal decision and carries very limited precedential value but is, in any case, unremarkable on legal principles itself. The case is noteworthy for other reasons, however.
The main issue in the case which was an unfair dismissal case, although the issue was evidently a surprise to the claimant was what the effective date of termination and did the ET have jurisdiction to hear the claim? Following a meeting on 16 December 2021 the claimant, Mr Gillard, was dismissed and the reasons for this decision were set out in a letter to him dated 22 December 2021. In evidence the claimant agreed that he knew on 16 December that he was being immediately dismissed as he had verbally been informed of this. The claimant referenced the requirement to give notice of termination but that is not the legal test. The time limit commences on the effective date of termination (EDT) which is a statutory not contractual concept (section 97 of the Employment Rights Act 1996). Unsurprisingly, given the admission that he had been told on 16 December that he had been dismissed the employment tribunal found that the EDT was 16 December 2021. This meant that the claim was not lodged within the three months timescale and the ET had jurisdiction if the claim, although late, was made as soon as it was reasonably practicable to to so. On the facts, the claimant knew about time limits and could conduct legal research and so, unsurprisingly, the ET ruled that the claimant had not claimed as soon as he reasonably practically could and, consequently, the ET did not have jurisdiction to hear the case.
On the above summary this reads as a fairly ordinary out of time unfair dismissal case in which a claimant has lost an opportunity to challenge the fairness of their dismissal because they made a mistake about time limits. However, there are some aspects of the decision that are instructive.
An easy and common mistake
If ever there was a case you would expect the participants to have a mastery of the basic legal issues this was it. The Respondent, Minster Law, is a large legal firm with its own Employment Law department. The Respondent was itself represented by Counsel at the hearing. The claimant had over 18 years experience working in legal firms (although a search of the SRA register suggests he was not himself a solicitor), he had instructed and received legal advice from solicitors, and he too was represented by Counsel.
When making his claim, the claimant stated he was dismissed on 22 December (which, if true would have meant the claim was in time). Astonishingly, the employment law specialising Minster Law agreed with the claimant about his dismissal date and in its legal response also stated that the claimant’s date of dismissal was 22 December 2021. In joining forces with the claimant on this issue, Minster Law therefore raised no arguments that there was a jurisdictional issue in the claim. Their failure to do so was a very poor show and seems to have caused wasted costs in the case to itself, the claimant, and lost sitting days at the tribunal.
Still, the fact that two sets of legal teams, both of whom should have known better have independently made the common mistake of getting the date of dismissal and therefore the time limit for a claim wrong is a salutary lesson that this should be considered carefully and also reassuring that even the best of us make mistakes.
ET standing to decide
It was only at the substantive hearing that the employer Respondent raised the issue that the Tribunal may be out of time. In that context it is difficult not to feel considerable sympathy for the claimant and, not unsurprisingly, the claimant argued (rightly) that this was never part of the Respondent’s case and that, therefore, it was unfair to allow the issue to be raised at the late hour it was.
In many circumstances the late addition of a new defence would indeed require an amendment to allow the issue to be raised but in this case the employment judge determined this was not necessary and explained why:
The Claimant’s Counsel raised the fact that the Respondent would need to seek leave to amend its response in order to advance an argument that the EDT was 16 December 2021. Whilst I sympathised with the Claimant’s position and agreed that the issue ought to have been raised well in advance of this hearing, I did not consider an application for permission to amend to be needed. The EDT is a statutory concept. It is clear from the case law that it is not a matter that the parties can agree between themselves. It is something that I was required to determine myself.
Paragraph 6 from the ET Judgment.
Although they seem to be court-like to those appearing the Employment Tribunal is not a court but its power to hear cases derives solely from Parliament and its enabling legislation (mainly the Employment Tribunals Act 1996). It may only hear cases on matters it has authority to hear and the relevant legislation has made clear that a tribunal will only have jurisdiction to consider a claim if a claim is lodged in the relevant time limit or the claimant could not reasonably make that application in time. That limitation on the tribunal’s power to hear the case applied whether or not the parties raised the issue of time limits earlier and this is why the judge explained this needs to be considered by a judge whether or not raised by a party (and this would be an error of law if they did not do so). For that reason, although there is clear unfairness in the approach the approach of the ET was in compliance with the law.
Skilled Advisers and checking the papers
The claimant stated in the case that he relied upon the advice he received from his solicitors, this is not unreasonable. A solicitor is a type of skilled adviser we have discussed before which means that any remedy would be against the adviser and would not normally be grounds for allowing the case to proceed out of time. The case however is also a good example of a more basic principle, particularly relevant for claimants and union reps handing over cases to legal representatives: check the solicitor’s workings! At the early stages of cases at least no-one will have a better handle on the key facts and especially the timings of key events in a case. Just because a lawyer says an ER deadline is a certain date it does not mean it is, and it is always worth double checking.
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