The claimant had been employed by the respondent retailer.   He was orally dismissed from his position on 14th January 2019 which was followed by written confirmation dated 18th January 2019.   The claimant followed the internal appeals process and the decision on appeal was to uphold the decision to dismiss.  This decision came on 12th March 2019.  The ET1 was presented on 3rd May 2019 when the claimant had been legally assisted.  The solicitor for the claimant had come off record between presenting the ET1 and the hearing which took place in the absence of the claimant.

The Tribunal held that the effective date of dismissal, as set out in the case of Savage v Sainsbury [1980] IRLR 1089 is the date of the original dismissal and not any date of the appeal.  As a result, the claim was out of time as it should have been presented within three months of the 14th January 2019.   Interestingly, the Tribunal President noted that the respondent legal team had failed to take into account the effect of Article 39(2) of the Interpretation Act (NI) 1954 which gives an extra day compared to Great Britain, as the day of the action is not taken into account.   Therefore, the claim should have been presented by 14th April 2019 but was actually presented three weeks late.

The next issue was whether time should be extended, which can only be done when it was not reasonably practicable for the Claimant to have presented it by the 14th April and if it wasn’t, then was it presented within a reasonable time thereafter.  One of the issues was the fact that the claimant had been legally advised from 15th January (the day after dismissal) to a point after the presentation of the ET1.  The respondent asserted the position in Dedman v British Building & Engineering Appliances Ltd [1973] IRLR 379 which stated that when the claimant engages skilled advisers to act for him and they make a mistake regarding the time, then he is out of time.  He would only have a remedy against his legal advisers.   This point has been reiterated more recently in Marks & Spencer Plc v Williams-Ryan [2005] IRLR 562.  As a result, the Tribunal struck out the claim for unfair dismissal as being out of time and with no recourse to extending time as it could not be shown that it was not reasonably practicable to present the claim within the correct time.

Practical Lessons

This case demonstrates two very important practical lessons.  The first is the date of dismissal that is to be used for the purposes of time beginning to run.  It is the date of the original dismissal and not any date of decision in an appeal.

The second point is that legal advisers must be aware that they are presenting claims within the correct time as any argument for submitting it after when there has been a mistake has been met with short shrift by both the Tribunal and the Court of Appeal.   This will also protect legal advisers from potential negligence claims.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/