Third party dismissal
Labour & European Law Review Weekly Issue 354 29 January 2014
Claimants must present their unfair dismissal claim to a tribunal within three months from the effective date of termination (EDT), unless it was not “reasonably practicable” to do so. In Robinson v Fairhill Medical Practice, the Employment Appeal Tribunal (EAT) held that time starts to run from the date that the employee learnt of their dismissal, even if it was through a third party.
Ms Robinson, who had worked for over 40 years in an administrative capacity at Fairhill Medical Practice, was suspected of serious misconduct by her employers. After starting an investigation in December 2010, they decided to discipline her.
She became depressed and went off sick. In the meantime, she instructed a solicitor, Ms Kavanagh, to act on her behalf who asked the practice not to communicate directly with Ms Robinson because of her ill health.
After delaying disciplinary proceedings, the practice decided to go ahead with a hearing in Ms Robinson’s absence and she was summarily dismissed for gross misconduct on 6 July 2011. The solicitors acting for the practice informed Ms Kavanagh by e-mail that day of the outcome and she told her client over the phone the following day. Ms Robinson received and read a letter confirming her dismissal on 8 July.
Ms Kavanagh presented claims for unfair dismissal and disability discrimination on 7 October, two days after the expiry of the three month deadline.
The tribunal judge held that the effective date of termination was 7 July, the date when Ms Kavanagh who was acting as Ms Robinson’s agent throughout, told her client that she had been dismissed.
As it was reasonably practicable for Ms Kavanagh to have presented the claim on or before 6 October, the tribunal did not have jurisdiction to hear the unfair dismissal claim, which was struck out.
As for the disability discrimination claim, the tribunal judge held that it also failed. Although Ms Kavanagh had had all the information she needed to lodge it before the deadline, she had failed to provide a satisfactory explanation as to why she submitted it late.
Ms Robinson appealed on the basis of the Supreme Court decision in Gisda Cyf v Barratt which held that the three-month period runs from the date on which the employee (as opposed to a third party) reads the letter informing them of their dismissal, or had a reasonable opportunity to read it.
The EAT dismissed the appeal against the unfair dismissal claim, holding that there was no reason why the test in Gisda could not be satisfied by an employer who initially gave notice of the dismissal to a third party rather than the employee herself.
The fact that Ms Robinson had not received the formal letter of dismissal (even though it had been sent) when she learnt of her dismissal did not change the situation. Had Ms Kavanagh not been able to contact her client until 9 July, that would have resulted in a different outcome. The EAT therefore upheld the decision of the tribunal that the effective date of termination was 7 July.
However, the EAT upheld the appeal against the decision to dismiss the disability discrimination claim on the basis of the judgement in Virdi v Commissioner of Police for the Metropolis and anor which decided that as “the errors of the solicitor should not be visited on [the] head [of the claimant]”. It was just and equitable to extend the time for this claim.