Tribunal claims usually have to be presented within three months less one day of the effective date of dismissal. In Lowri Beck Services Ltd v Brophy, the Employment Appeal Tribunal (EAT) held that it had not been reasonably practicable for the claimant to lodge his unfair and wrongful dismissal claims on time as he had genuinely misunderstood the date when he was dismissed.
Mr Brophy, who had worked for the company since 2008, suffered from severe dyslexia. As a result, he struggled to memorise new information or to understand and retain verbal instructions unless they were backed up with an additional explanation or were confirmed in writing.
In May 2017 his manager received a report from a customer about Mr Brophy’s conduct. After an investigation and a disciplinary hearing, he was told by telephone on 29 June that he was being dismissed with immediate effect for gross misconduct. He received a letter on 6 July which was dated 4 July, confirming his dismissal on 29 June.
Mr Brophy’s brother, who was not legally qualified, understood that he had been dismissed as of 6 July as that was the date that his brother had received the letter. After taking advice on that basis, he started the early conciliation process on 30 September and the EC certificate was issued on 13 November. His brother lodged his tribunal claim for unfair and wrongful dismissal as well as disability discrimination on 5 December stating that his employment had ended on 4 July.
The tribunal held, firstly, that time should be extended with regard to his claim for unfair and wrongful dismissal due to a genuine misunderstanding on the part of Mr Brophy’s brother as to the date of dismissal. It had not therefore been reasonably practicable for the claim to have been lodged in time.
It also held that, with regard to the discrimination claim, it would be just and equitable to extend time as the company would not suffer any particular prejudice as a result of allowing the claim to proceed.
The company appealed on the basis that, with regard to the dismissal claims, ignorance of the relevant time limits was not enough. Instead the tribunal needed to consider firstly whether his ignorance was convincing given that the letter clearly stated the effective date of termination; and secondly whether it could justify the reasonable practicability test. Although there was no absolute rule with regard to the discrimination claim, the company argued that it was hard to understand the basis on which the tribunal had decided it was just and equitable to extend time.
With regard to the question as to whether it was reasonably practicable for the unfair and wrong dismissal claims to have been presented on time, the EAT held that this was a matter of fact, not law, for the tribunal to decide. In this case, the tribunal had decided, as a matter of fact, that Mr Brophy’s brother had misunderstood the meaning of the letter of 4 July. He had not, however, misunderstood the law as he knew that the claim had to be lodged within three months of the date of dismissal.
As for the disability discrimination claim, the tribunal had applied the correct test by taking into account the relevant factors and was entitled to focus on the question of comparative prejudice.
Holding that there had been no error of law, the EAT dismissed the appeal.
This case demonstrates the importance of ensuring the dismissal letter is clear and without contradiction with regards to the effective date of termination.