Clarification of Dismissal Dates

Clarification of Dismissal Dates

A case has recently been to the Employment Appeals Tribunal (“EAT”) to decide when an employee should be deemed dismissed.
In Robinson v Fairhill Medical Practice the Claimant had been employed for over 40 years in an administrative capacity. In December 2010 the Claimant was invited to a disciplinary hearing to investigate some alleged serious misconduct.
The Claimant became depressed and was signed off work by her doctor so instructed a solicitor Ms Kavanagh to act on her behalf during the disciplinary process. Ms Kavanagh asked the Respondents to correspond directly with her and not to contact the Claimant due to her ill health. Several hearing dates were adjourned or postponed on the basis of the Claimant’s ill health but the Respondent eventually decided to proceed with the hearing after Ms Kavanagh was given the chance to make written representations.
On 6 July 2011 the Employer emailed the Ms Kavanagh to confirm the employee was going to be summarily dismissed. Ms Kavanagh informed her of this the next day (7 July) however she did not receive her formal dismissal letter until 8 July 2011.
The Claimant presented her claim for Unfair Dismissal and Disability Discrimination on the 7 October 2011. The time limit to bring a claim for Unfair Dismissal is three months minus one day from the date of dismissal. The Respondent alleged that the dismissal had been communicated to the Claimant’s solicitor on the 7 July and submitted that this was the date the dismissal occurred.
The Tribunal initially held a pre-hearing review (now referred to as a Preliminary Hearing) which is ahead of the main hearing and used to decide key issues which may affect the continuation of the claim. In this case there was a pre-hearing review to decide on whether the claim had been brought in time.
The EAT considered a previous decision in Gisda Cyf v Barratt which held that a dismissal is effective when it is communicated to the employee or when she had a reasonable opportunity to know of it. The EAT held that communication through a third party would suffice and therefore held that the Claimant in Robinson had been dismissed when her solicitor informed her on 7 July 2011.
The EAT commented that the fault of the solicitor ought not to be held against the Claimant as a factor on whether it was just and equitable to extend time for the Claimant’s Disability Discrimination Claim to be held. The EAT substituted its own decision for that of the employment tribunal and the Claimant’s appeal therefore failed.
If you believe that you might have an employment claim to bring against a former employer then do not hesitate to contact Michael Lewin’s Employment Team at the earliest opportunity.
Written by
Crystall Bolton

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