The issue for the tribunal was whether or not it had jurisdiction to hear the claimant’s unfair dismissal claim in light of the relevant time-limit provisions contained in the Employment Rights (Northern Ireland) Order 1996 (ERO).  The claimant resigned by letter dated 30th August 2016, noting that she had instructed her solicitor to initiate constructive dismissal proceedings. The claim form was presented to the tribunal 19 days outside the 3-month time limit on 19 December 2016, albeit that it was signed and dated by her solicitor on 30th November 2016. The claimant argued that she had expected a response from her employer and that the ‘effective date of termination (EDT)’ was 17th September 2016, which was the date of her P45.

While she argued that, due to health complications she was not in a fit state to provide coherent instructions to her solicitor, the tribunal rejected this argument. It cited the fact that she had been well enough to discuss the potential claim with her solicitor prior to the resignation letter and that the claimant had also been fit to draft the letter herself. The tribunal held that it had no jurisdiction to hear the claim.

Practical Lessons

The burden of proving that the claim could not have been presented within the time-limit is on the claimant with the test to be applied whether it was reasonably feasible for the claimant to present the claim within time.

In this case, as the claimant had the benefit of legal advice, it was noteworthy that the solicitor could have lodged the claim form within the protected time period. The consequence of this, based on what is known as the ‘Dedman principle’, is that if there is a mistake on the solicitor’s part and the claim form is lodged late then the claimant’s remedy is against the solicitor and the tribunal is not the proper forum.

One other relevant point can be made - the claimant’s argument re the date of the P45 was quite a weak one, considering she had written an unequivocal letter of resignation which left no room for doubt as to her intentions. Such a letter will always serve to set the EDT unless, for example, the employee agrees with the employer during the notice period to alter the date for whatever reason. Furthermore, while it is good practice to do so there is no legal requirement for an employer to ‘accept’ an employee’s resignation and this this won’t affect the EDT either.