Employees with two years’ continuous service usually have to bring a claim for a redundancy payment within six months of the date when their employment ended. In Dhungana v Rai and anor, the EAT held that it was just and equitable to extend time in this case, taking into account all the other relevant circumstances.
Ms Dhungana, a domestic worker in the home of Mr and Mrs Rai from the beginning of September 2015 to the end of December 2020 carried out a range of duties. These included, in her words, “cleaning, cooking, gardening, dog handling, shopping, security guard, caretaking, and hair dying Mrs Rai's hair."
Although she had no legal right to work in the UK, she often worked 13-hour days, six days a week. Her husband also worked for the family, but unlike Ms Dhungana, was formally employed by them.
She made a claim for a statutory redundancy payment which meant she had to show that she was employed on a contract of employment continuously for two years. However, as she had lodged her claim outside the six months’ time limit, the first issue for the tribunal to consider was whether it should extend time.
Although the tribunal acknowledged that Mr and Mrs Rai would not be “significantly prejudiced” in practical terms by granting an extension of time, it held that it was not “just and equitable” to do so because the working arrangements described by Ms Dhungana were not likely to amount to a contract of employment.
In particular, it pointed out that even on her account there was no obligation on Mr and Mrs Rai to give her work, there was only an obligation on her to work when she was told to do so. The tribunal considered that as she was unlikely to be able to establish mutuality of obligation (which is required for an employment contract), she would be unlikely to succeed in her claim for a redundancy payment.
Allowing the appeal, the EAT held that the tribunal was wrong to conclude that her claim for a redundancy payment was unlikely to succeed based solely on her own account of when she was obliged to work. Whether or not mutuality of obligation could be established was dependent on a full investigation of the facts. As such, the tribunal should not have relied on what she said in her employment tribunal claim form as a basis for refusing to allow her claim for a redundancy payment to proceed.
In terms of the delay, the EAT considered that the tribunal would have granted the extension had it not erred in its premature finding that Ms Dhungana would not have qualified for a redundancy payment.
Apart from anything else, the tribunal had exercised its discretion in her favour by finding it was just and equitable to extend time for her claims for sex and race discrimination even though the delay in presenting those claims was even longer than the delay in presenting her claim for a redundancy payment.
The EAT, therefore, allowed the appeal and remitted the claim for a redundancy payment to the tribunal alongside her claims for sex and race discrimination.