Background:

The claimant was employed as a care assistant on 24th April 2019 and her contract of employment was terminated for alleged theft following a meeting on 8th April 2020.    This was confirmed to the claimant on 9th April 2020.  There was no appeal to the dismissal lodged internally by the claimant.

The claimant lodged a claim for unfair dismissal and race discrimination in July 2021, some 15 months after the dismissal.   The final date for presentation of the claim within the statutory time limit would have been 9th July 2020.

The claimant states that she did not instigate her proceedings because there was a police investigation in relation to the alleged theft which only closed in May 2021.  She had, though, prior to this contacted the Law Centre and she had stated that she was advised at the end of 2020 to contact the Equality Commission, but did not.

The claimant argued that time should be extended because of her ignorance of her rights and that she was awaiting the outcome of the PSNI investigation.  The respondent argued that the claims were ‘grossly’ out of time, it was not just and equitable to extend time and the claimant did not have sufficient service to bring an unfair dismissal claim.  The respondent also outlined that their case would be prejudiced considering the length of time from the alleged conduct and the case being brought as well as the fact that the respondent business had been sold and there was a change of personnel.

Outcome:

The Tribunal outlined that each case, when it comes to extending time, should be judged on its own facts and merits.  It is, though, for the claimant to persuade the tribunal that the statutory time limit should be set-aside in the circumstances.

In terms of the unfair dismissal claim, the claimant argued that had the respondent followed the right process it would have brought her over the one year required for the right not to be unfairly dismissed to crystallise.  However, the Tribunal outlined that Article 118 of the Employment Rights (NI) Order 1996 does allow for that time to be extended to cover any notice period when it was not given.  The notice period was only one week for the claimant and that would still fall short of the required one year period.  For this reason, the claim of unfair dismissal was dismissed for want of jurisdiction as the claimant did not have that right.

In terms of the race discrimination claim, it failed on the time limit.  The Tribunal decided not to extend time citing that any ignorance of the claimant’s rights were not reasonable in the circumstances.   This was especially so considering that she had been researching her ‘human rights’ and that she had been advised to contact the Equality Commission in 2020 but she waited another 5 months before doing so.  Furthermore, the police investigation into the theft only required the claimant to attend one interview and she was not in custody. As a result, it did not impede the claimant for seeking advice or lodging proceedings.  The case was therefore dismissed.

Practical Guidance for Employers:

This case raises an interesting point about when an employee gains the right not to be unfairly dismissed.  We are all fairly familiar with the one year requirement but Article 118 of the 1996 Order does allow for the period of employment to be extended to cover notice periods where they were not given as a result of the dismissal.  That should be taken into account should a dismissal fall close to the one year continuous service point.  A second point is the extent to which a PSNI investigation will be taken into account for extending time.  The Tribunal have made it clear that it is not a ‘golden bullet’ but rather it has to be taken into account with the extent to which it would impede obtaining legal advice on employment rights and being able to lodge proceedings.  As there was little impediment the case was dismissed.

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