Legal Updates

Employment Law– Time Limit – Unfair Dismissal – 8 Seconds Late – Determination of date of Termination of Employment – Amendment of Notice of Appeal

In the case of Miller v Community Links Trust Ltd [2007], the employee had failed to present his claim for unfair dismissal within the prescribed period. The employee brought a complaint before the employment tribunal claiming unfair dismissal. The claim form was submitted online by the employee's representative, N, at one second before midnight on the 29th of September 2006. It was received at eight seconds after midnight.

At a pre-hearing review, N stated that he knew that the effective date of termination of the employee’s employment was the 30th of June 2006.

The tribunal dismissed the employee's claim. It stated that the time for the employee’s presentation had expired on the 29th of September. It further held that it had been reasonably practicable for the complaint to have been presented within the prescribed time limit. In addition, the tribunal made various findings against N.

The employee appealed against this decision and subsequently sought to amend the notice of appeal to take issue with the tribunal's finding as to the effective date of termination.

It therefore fell to be determined on appeal:

§   Whether the application to amend the notice of appeal should be allowed; and

§   Whether the tribunal had erred in concluding that it was reasonably practicable for the claim to have been presented within the prescribed time limit.

Issues also arose as to whether N had been deprived of the opportunity to check that the claim form had been received.

The appeal was dismissed.

It was held that where an issue had been conceded before an employment tribunal, the basis upon which the Employment Appeal Tribunal would allow the concession to be reversed was described by authority. Only in exceptional circumstances would a new point be allowed to be advanced even if it sought to undo a concession which had been wrongly made. The application for an amendment would therefore be refused. It was held that this case had not crossed the threshold set by authority.

Furthermore, what was deemed reasonably practicable was essentially a question of fact for an employment tribunal to determine. It would not be overturned unless it was perverse. It was felt that there should be no weight attached to the point that N had been deprived of the opportunity to enquire about the submission of the form, considering that he had only allowed one second for that to occur.

It was decided that the tribunal had reached a conclusion on the fact that it had been reasonably practicable to present the claim within the time allocated. It was considered to have been a careful judgment of a very experienced tribunal. Furthermore, it had justified each finding against N, which it had made quite properly, in the context of looking at where the fault lay.

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© RT COOPERS, 2008. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.




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