Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/532_12IT.html
Cite as: [2012] NIIT 00532_12IT, [2012] NIIT 532_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 532/12

CLAIMANT: Andrew Gibson

RESPONDENT: St Patrick Visitor Centre Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:-

(1) the effective date of termination of the claimant’s employment with the respondent was 20 December 2011;

(2) the claimant’s claim to the tribunal, having been presented on 21 March 2012, was not presented to the tribunal before the end of the three months beginning with the effective date of termination;

(3) the tribunal was not satisfied it was reasonably practicable for the complaint to be presented before the end of the said period of three months, but was satisfied the complaint was then presented within a reasonable time thereafter;

(4) the tribunal therefore has jurisdiction to consider the claimant’s claim of unfair dismissal, pursuant to Article 145 of the Employment Rights (Northern Ireland) Order 1996; and

(5) a Case Management Discussion will be arranged for the tribunal to make such further case-management directions/orders, as may be necessary and appropriate, for the substantive hearing of this matter; and the parties will be notified, in due course, of the date and time of the said Case Management Discussion.

Constitution of Tribunal:

Chairman (sitting alone): Mr N Drennan QC

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr C Ritchie, Solicitor, of Kennedys, Solicitors.

1.1 The claimant presented a claim of unfair dismissal to the tribunal on 21 March 2012 and the respondent presented a response denying liability for the said claim on 1 May 2012.

1.2 A Case Management Discussion was held on 25 July 2012, as set out in the Record of Proceedings dated 30 July 2012, when it was agreed, for the reasons set out therein, that this pre-hearing review should be arranged to consider and determine the following jurisdictional issues, namely:-

(i) What was the effective date of termination of the claimant’s contract of employment with the respondent?

(ii) Was the claimant’s claim of unfair dismissal presented to the tribunal –

(a) before the end of the period of three months beginning with the effective date of termination; or

(b) in such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months;

pursuant to Article 145 of the Employment Rights (Northern Ireland) Order 1996?

1.3 Following the Case Management Discussion on 25 July 2012, and again at this hearing, the claimant confirmed that, in addition to a claim of ‘ordinary’ unfair dismissal, pursuant to Article 126 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’), he also wished to proceed in the alternative, with his claim of unfair dismissal, pursuant to Article 134A of the 1996 Order, which provides:-

“An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or if more than one the principal reason) for the dismissal is that the employee made a protected disclosure (‘whistleblowing claim’).”

It was further agreed, in view of the said whistleblowing claim, that, if the tribunal found, following this hearing, it had jurisdiction to consider the claimant’s claims of unfair dismissal a further Case Management Discussion, in accordance with the tribunal’s normal practice in relation to such whistleblowing claims, would be arranged to identify the relevant issues to be determined by the tribunal at any substantive hearing and/or to give detailed case-management directions/orders, as may be appropriate and necessary.

1.4 At his pre-hearing review, on the first day of the hearing, the claimant gave oral evidence, and the respondent called no evidence; but both the claimant and the respondent’s representative referred the tribunal to a bundle of agreed documents. At the conclusion of the first day of the hearing the claimant and the respondent’s representative made oral and written submissions and I reserved my decision. However, for reasons set out elsewhere in this decision, it was necessary, before I determined this matter, to have a second day of hearing, when the claimant gave further oral evidence and both the claimant and the respondent’s representative made further oral submissions. In determining the issues, the subject-matter of this pre-hearing review, I reached no conclusions in relation to the reason for the claimant’s dismissal and/or the fairness of the said dismissal.

1.5 It was not disputed that under the claimant’s contract of employment, the claimant was employed as the Education Officer, his service in the post began on 1 September 2011 and the contract ran to 31 December 2011.

2.1 Insofar as relevant and material for the determination of the issues, the subject-matter of this pre-hearing review, as set out above, I made the following findings of fact, as set out in the following sub-paragraphs.

2.2 On 13 December 2011, there was a Board meeting of the respondent following which on 14 December 2011, Mr J Ferris the Chairman of the Board, gave the claimant verbal notice of redundancy. He told the claimant that the Board, following advice, had decided to make the post of Education Officer redundant. There was nothing said by Mr Ferris to the claimant at that meeting, in relation to the date of the termination of his employment and/or the terms of any such termination.

2.3 On 20 December 2011, the claimant had a meeting with the Director of the respondent, Dr T Campbell, which was also attended by the Office Manager, as minute-taker. Initially, the claimant was told by Dr Campbell that no final decision had been made in relation to the claimant’s redundancy. But, after the claimant explained to him what he had been told by Mr Ferris, as set out above, and how it was causing him great stress, he was told by Dr Campbell that part-time work would not be offered by the respondent as an alternative to his redundancy. The claimant then said to Dr Campbell he wished his notice of redundancy in writing, because, as he explained in evidence, he wanted the situation finalised in writing, so he could move on. Dr Campbell then left the meeting to consult and, in particular, with the respondent’s insurance company. About an hour later, Dr Campbell handed to the claimant a letter dated 20 December 2011. The claimant was then asked to leave the building and he did not return to work again at the Centre from 20 December 2011.

2.4 The letter of 20 December 2011, from Dr Campbell to the claimant stated:-

“Notice of Redundancy

Further to the meetings held on 24^th of November, 30^th of November, 8^th of December; and in particular the meeting of 20^th of December, I regret to inform you that you have been selected for redundancy and you will leave your employment on 20^th of December.

(1) You are entitled to three weeks’ statutory redundancy pay capped at £400.00 per week totalling 12 hundred pounds.

(2) You are entitled [sic] a month’s notice although we have agreed to give you an additional 11 calendar days running to the end of your contract period. This period will expire on 31^st of January 2012 and will be paid in lieu of notice.

You have the right to appeal against the decision to dismiss you on the grounds of redundancy. If you wish to do so, you should contact the Chairman of the Centre in writing by within seven days stating in full the grounds upon which you wish to appeal.

This decision is very regrettable and can I thank you on behalf of all the staff at the St Patrick Centre for your hard work and support over the last few years.

Yours sincerely

Dr Tim Campbell

Director.”

2.5 Prior to the meeting on 20 December 2011, the claimant had sought advice from solicitors and the solicitors wrote ‘without prejudice correspondence’ on his behalf, dated 23 December 2011, to the respondent. The claimant accepted, in evidence, that he had informed his solicitors of what had happened at the meeting on 20 December 2011 and of the contents of the letter of 20 December 2011, given to him by Dr Campbell, but also he had informed them he intended to appeal, as set out in the said letter.

2.6 Following receipt of the said letter on 20 December 2011, the claimant did not work again for the respondent, nor was he asked to do so.

2.7 The claimant appealed the decision, as set out in the said letter, and by letter dated 6 February 2012, Mr J Ferris informed him the appeal was unsuccessful when he informed the claimant, inter alia:-

“ … In the appeal regarding your loss of employment through the Board of Trustees declaring the post of Education Officer redundant, with effect from 31^st of December 2011 [tribunal’s emphasis], we questioned Dr Campbell on implementation of the required redundancy procedure.

Our conclusions are that:

…

(2) That the Trustees were correct on declaring the post redundant, with the process of redundancy being carried out in the appropriate manner.

… .”

2.8 I am satisfied, having considered the terms of the claimant’s contract of employment, the claimant was not employed by the respondent, as is common with most contracts of employment, pending the outcome of his appeal.

2.9 Although the claimant was employed by the respondent, the payroll was handled, on behalf of the respondent, by Down District Council (‘the Council’). At the end of January 2012, it was not disputed the claimant was paid by the respondent the sums agreed to be paid to him, as set out in Paragraph 2 of the letter of 20 December 2011; but when he asked the Officer Manager of the respondent, why he had not been also paid, at the same time, the sum due to him as his redundancy payment, as set out in Paragraph 1 of the letter, he was told by her, which was orally confirmed by a member of staff in the Finance Department of the Council, he would not receive the redundancy payment until the end of February 2012 (ie the next pay date) as he was deemed to be still employed by the respondent until 31 January 2012. He was subsequently paid his redundancy payment, in accordance with Paragraph 1 of the letter of 20 December 2011, on 27 February 2012. In a letter from Dr Campbell to the claimant’s Payroll Department dated 31 January 2012, which activated the payment by the Council of the redundancy payment, Dr Campbell, stated, inter alia:-

“Mr Andrew Gibson’s contract will end on 31^st of January 2012, due to redundancy. … We would therefore request that you cease monthly payments to this employee but make one final payment of £1,200 (redundancy entitlement) to this employee at the end of February 2012.”

2.10 The claimant subsequently received, from the respondent, his P45, dated 15 February 2012, which stated, inter alia, the claimant’s leaving date was 31 January 2012.

2.11 In the claimant’s claim form, when setting out the details of his claim at Paragraph 7.4.2 the claimant stated:-

“ … I was dismissed on 20^th of December. … ”

The claimant said, in evidence, that he had stated this on his claim form, as this was the day he was asked to leave the Centre and was the last day he therefore worked at the Centre.

2.12 The claimant accepted that, following the letter of 6 February 2012, informing him his appeal was unsuccessful and at some date, which he could not recall, before the end of February 2012, he again consulted with his solicitors about what had happened, and the correspondence referred to above. He accepted, in evidence, during this consultation with his solicitor, he was given advice by his solicitors that, if he wished to bring a claim of unfair dismissal to the tribunal, he required to do so within three months from the effective date of termination. At that time the claimant had not finally decided whether or not to bring a claim of unfair dismissal.

2.13 Although I accept the claimant was given such advice, which cannot be criticised, I am not satisfied, on the limited evidence before me, at this consultation, the claimant sought from his solicitors any specific advice about what was the actual effective date of termination of his employment, in the particular circumstances of the claimant’s case and/or the date when the said three month period began or ended. Indeed, I noted that the claimant, at some time following this consultation, looked himself at the provisions contained in Article 129 of the 1996 Order and how effective date of termination is defined. It was only sometime after this consultation at some date in early March 2012, the claimant finally decided to being a claim for unfair dismissal against the respondent, arising from his dismissal and he did not further consult with his solicitor or instruct his solicitor to present the claim on his behalf.

2.14 Prior to the hearing of the pre-hearing review the tribunal produced to the parties, at their request, the records, in the tribunal’s possession, relating to the presentation of the claimant’s claim form online. These records, which were not disputed, showed the claim form was not received by the tribunal until 21 March 2012. Unfortunately, the tribunal records did not record the time when the claim form was received but only the date, as set out above. The claimant stated that he did not receive any confirmation from the tribunal of receipt of his online claim form. I am satisfied this is correct, because it was only in May/June 2012, the tribunal has introduced an automatic confirmation of receipt of the claim form, which is sent by e-mail to the claimant’s e-mail address. If such a confirmation of receipt of claim form had been available at that time, some of the difficulties that arose in this case might have been avoided.

2.15 On the first day of the hearing, the claimant gave oral evidence, which was the subject of considerable cross-examination by the respondent’s representative, that during the day of 20 March 2012 he decided to send his claim form online to the tribunal on an old laptop computer, which the respondent allowed him to retain, when he left the Centre. He said he worked on it for some considerable time during the course of that day, as it was a lengthy document, but he believed he submitted it online to the tribunal between 7.00 pm - 8.00 pm and certainly no later then 9.00 pm. He also stated that, at that time, he had been left in a state of confusion about when was the effective date of termination of his employment and the said three month period began and ended, because of what he had been told orally and in writing by the respondent and/or the Council, as referred to previously in this decision, relating to the termination of his employment. He stated he had concluded that the earliest date, when the three month period could begin, was 31 December 2011. This was because of the reference to that date by Mr Ferris in his letter of 6 February 2012, rejecting his appeal, when he had referred to the claimant’s loss of employment, with effect from 31 December 2011. He also stated he believed he could well have longer to bring his claim and the relevant date was one month later on 31 January 2012. He said he did so because of what he hade been told by the Office Manager of the respondent and the Payroll Department of the Council when he sought to obtain his redundancy payment, and was told he was deemed to be still employed by the respondent until 31 January 2012, all of which he believed was consistent with Dr Campbell’s letter of 31 January 2012 to the Payroll Department of the Council, activating the payment, with its reference to the claimant’s contract ending on 31 January 2012. This later date was further confirmed for him by the reference to his P45, dated 15 February 2013, and sent to him by his employer with its reference to the claimant’s leaving date on 31 January 2012. He stated, in evidence that, despite his belief that he still had until 31 March 2012 (ie three months from 31 December 2011) at least, and probably longer until 30 April 2012 (ie three months from 31 January 2012) to present his claim, he decided to err on the side of caution and to present his claim on 20 March 2012, being three months since he had physically left work at the Centre.

2.16 Having reserved my decision at the conclusion of the first day of hearing and, after taking the opportunity to consider the full and detailed judgments in the decisions of the Employment Appeal Tribunal in the case of Initial Electronic Security Systems Ltd v Advic [2005] UKEAT/028 and Tyne & Wear Autistic Society v Smith [2005] IRLR 336, which had been referred to in the course of submissions, I concluded that further information in relation to the time of the presentation of the online claim form by the claimant should be held by the Host Server, albeit not by the tribunal itself. I decided that, if such information existed, it should be able to be obtained and provided to the parties, having regard to the terms of the overriding objective, before any decision was made by me. I am satisfied that, in light of the foregoing, where an issue in any case, in the future, arises relating to the time of presentation of an online claim form/response form, the interests of justice require that any relevant information held by the Host Server should be provided to the parties, if requested, and the tribunal should provide the limited information held by the tribunal but also any information by the Host Server.

Following relevant enquiries from the Host Server, information was obtained by the tribunal from the Host Server and provided to the parties, which information was not disputed by the parties. The information showed, inter alia, the claimant first worked on the online claim form at 13.27 on 21 March 2012, submitted it to the tribunal at 14.50 on 21 March 2012 and it was processed by the tribunal at 16.19 on 21 March 2012. In light of the contents of the information received from the Host Server and the oral evidence given to the tribunal by the claimant at the first day of the hearing, as set out in the previous sub-paragraph of this decision, I arranged, without objection, a second day of the hearing to enable the parties to make further submissions and/or to call further evidence. The claimant gave further oral evidence and both the claimant and the respondent’s representative made further submissions.

2.17 The claimant, at the resumed hearing, did not dispute the contents of the information received from the Host Server. He accepted that he had clearly been mistaken when he had previously stated he had submitted the claim form on 20 March 2012 between 7.00 pm – 8.00 pm and no later than 9.00 pm. Having carefully observed the claimant when he gave his evidence on the two days of this hearing, which was the subject of detailed cross-examination by the respondent’s representative, I was satisfied that, when he initially stated the claim form had been presented on the evening of 20 March 2012, the claimant did not set out to deliberately mislead the tribunal but was genuinely mistaken. I further accepted that, on 20 March 2012, he had worked on his computer on the various matters which he intended to include in his online claim form; but that it was not until 21 March 2012, between 1325 and 1450, that he copied/pasted and finalised onto the online claim form what he had previously prepared on 20 March 2012, before finally submitting the online claim form at 1450 on 21 March 2012. I also accepted that, when he did this preparatory work for submission of the claim, on 20 March 2012, the specific dates of 20 March 2012 and/or 21 March 2012 were not of great significance to him, as he believed, at that time, that the earliest date he was required to present his claim was 31 January 2012 and there was therefore no rush; and, by doing it at that time, he was simply erring on the side of caution to get the claim form in early, as he had physically left work at the Centre some three months earlier on 20 December 2011.

I was further satisfied that at no relevant and material time was there any physical difficulty/impediment/sickness preventing the claimant submitting his claim to the tribunal.

Relevant law

3.1 Article 129 of the 1996 Order provides, as follows:-

“(1) Subject to the following provisions of this Article, in this Part ‘the effective date of termination’ –

(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires,

(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect, and

… .”

3.2 Article 145 of the 1996 Order provides as follows:-

“(1) A complaint may be presented to an industrial tribunal against employer by any person that he was unfairly dismissed by the employer.

(2) Subject to Paragraph (3), an industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal –

(a) before the end of the period of three months beginning with the effective date of termination, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”

3.3 In Great Britain, Section 97(1) and Section 111(1) and (2) of the Employment Rights Act 1996 (‘the 1996 Act’) are in similar terms, respectively, to Article 129(1) and Article 145(1) and (2) of the 1996 Order. In those circumstances, I was satisfied that the commentary contained on the these Sections of the 1996 Act in Harvey on Industrial Relations and Employment Law, together with decisions on the interpretation of the said Sections in the Employment Appeal Tribunal and the Court of Appeal in England and Wales, albeit only of persuasive authority in this jurisdiction, were relevant to my determination of the issues, the subject-matter of this pre-hearing review, in the absence of any relevant and material decisions by the Northern Ireland Court of Appeal.

3.4 There is a helpful summary of the law on this issue in Harvey on Industrial Relations and Employment Law, Section D1, where it is stated:-

“703 The EDT [effective date of termination] is a statutory concept which has to be determined on an objective basis. It follows that it is not open to the parties to reach agreement between themselves as to the EDT which should apply between them. This was confirmed by the Court of Appeal in Fitzgerald v University of Kent at Canterbury [2004] EWCA Civ 143.

705 Where the employer terminates a contract, pays a sum of money to the employee to cover the notice period and dispenses with the employee’s services for that period, the dismissal may take one of two forms. As the EAT pointed out in Adams v GKN Sankey Ltd [1980] IRLR 416, it may mean either that the employee is dismissed with notice but is given a payment in lieu of working out that notice, or that the employee is dismissed immediately with the payment being made in lieu of notice. If the dismissal falls into the former category, the EDT is the date when the notice expires; if it falls into the latter category then the EDT will be when the employment terminates. … Where the termination is by letter, it is a matter of construction which forms the dismissal takes. But often the letter is ambiguous. For example, in the Adams case a letter was written in November stating ‘you are given 12 weeks’ notice of dismissal from this company with effect from 5.11.79. You will not be expected to work out your notice but will receive money in lieu of notice …’. Despite this last phrase the fact that the monies were paid gross without deduction of tax and that pension rights were treated as ending on 5 November, the EAT held that the EDT was when the 12 weeks’ notice had run its course.

706 In a later case, Chapman v Letheby & Christopher Ltd [1981] IRLR 440, the EAT held that the construction to be put on the dismissal letter should not be a technical one, ‘but reflect what an ordinary reasonable employee would understand by the words used’. It should be construed, moreover, in light of the facts known to the employee at the date he received the letter [tribunal’s emphasis]. Consequently where there has been an oral notification followed by a written letter the oral and written words have to be construed together. It is not permissible to focus solely upon the letter, presumably even where its meaning is otherwise unambiguous (Leech v Preston Borough Council [1985] IRLR 337, [1985] ICR 192, following the approach adopted in the Chapman case). If the wording is still ambiguous, when viewed in that context, the language should be construed against the person using it. So that it will be for the employer to make his intentions clear if he wishes to rely upon a particular meaning.”

3.5 In Newham London Borough v Ward [1985] IRLR 509, it was confirmed that the date when the employee receives his P45 is wholly irrelevant to the question when summary dismissal takes effect and therefore it cannot be said that the effective date of termination does not arise until the P45 is received.

3.6 In the recent decision of the Employment Appeal Tribunal, in the case of Hawes and Curtis Ltd v Arfan and Another [2012] UKEAT1 June 2012, referred to me in the course of submissions, the EAT applied the decision in Fitzgerald and accepted the tribunal was entitled to take into account the decision made by the respondent employer on appeal, who had summarily dismissed the claimant employees with immediate effect on 5 October 2010, that the date of termination would be the date of the appeal on 4 November 2010.

In the Arfan case, in the letter of dismissal from the respondent, dated 5 October 2010, the claimants were told, inter alia:-

“it is the conclusion of the company based on the above, that your contract of employment with us be summarily terminated, as of the date of this matter, for reasons of gross misconduct.”

The claimants appealed and in a letter, dated 4 November 2010, the claimants were informed of the result of their appeal which included the following:-

“Based on the evidence available to her, and as set out in detail in the letter of 5^th October 2010 sent to you, Ms Alexander has decided to uphold the decisions of summarily terminating your employment, but has asked that the effective date of your employment be that of the date of this letter, that is 4 November 2010.”

The Employment Appeal Tribunal held:-

“35 The principles which apply where the appeal is entirely dismissed are clear. Generally speaking, in the case of a summary dismissal the EDT will be the date when the summary dismissal is communicated to the employee or the employee has a reasonable opportunity of finding out. The lodging and dismissal of an internal appeal therefore does not usually impact upon the date on which termination takes effect. There are, however, exceptional cases where the employment contract provides, or the parties agree, that the contract shall be kept alive during the appeal process. Those cases are the exception rather than the rule – but in those cases the effective date of termination will relate to the disposal of the appeal.

36 Conversely, if the appeal is allowed in full so that the employee continues in employment indefinitely, then it is well-established that the dismissal decision falls away – the employee remains in employment … .

37 What, if the employer, on appeal, takes a decision which necessarily affects the duration of the employment, for example if the employer substitutes a dismissal on notice or extends the period of the contract?

38 In our judgment, such a decision will have an impact on the effective date of dismissal. Take first the case where the employer substitutes a dismissal on notice, in principle Section 97(1)(a) will apply, and the EDT will be the date on which the notice expired. Take then a case like this, where the appeal varies the date on which termination takes effect. In principle, Section 97(1)(b) will apply and the EDT will be the date on which the termination takes effect.

… .”

3.7 The claimant who seeks an extension of time, pursuant to Article 147 of the 1996 Order, has to establish two matters:-

“(a) that it was not reasonably practicable for the claim form to have been presented in time, and on this point, the onus is on him and requires him to show precisely why he did not present his complaint in time; and

(b) that it was then presented within a ‘reasonable time’.”

In relation to the test of ‘reasonably practicable’ the Court of Appeal, in the case of Marks & Spencer v Williams-Ryan [2005] IRLR 562, has indicated that the said words should be given a liberal interpretation in favour of the employee; and in the case of Palmer & Saunders v Southend-on-Sea Borough Council [1984] IRLR 119, the Court of Appeal interpreted ‘reasonably practicable’ to mean ‘was it feasible’ for the complaint to be presented to the tribunal within the relevant three months?

However, it is well recognised the test of ‘reasonably practicable’ (confirmed again in the recent decision of the Employment Appeal Tribunal in the case of University Hospitals Bristol NHS Foundation Trust v Williams [2012] UKEAT/0291/12) is much narrower and harder for a claimant to establish than the test of ‘just and equitable’, which allows time to be extended in discrimination cases. The wider ‘just and equitable’ test is not what Parliament has provided under Article 145(2) of the 1996 Order, although it could have done so had it thought it appropriate.

3.8 Tribunals are therefore faced with the task of applying the above test of ‘reasonably practicable’ to a number of different factual situations, which can be many and various and, as May LJ stated in Palmer & Saunders cannot be exhaustively described, for they will depend on the circumstances of each case. There have been many cases dealing with the circumstances in which a claimant seeks to rely on the ‘escape clause’ provided under Article 145 of the 1996 Order.

3.9 May LJ in Palmer & Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 referred to a number of factors, which he emphasised could not be exhaustive but form a useful starting point in relation to the issue whether the test of reasonably practicable had been satisfied, namely:-

(a) the manner in which, and the reason for which, the employee was dismissed, including internal ‘conciliatory appeals procedure’;

(b) the substantial cause of the employee’s failure to comply with the substantially time-limit;

(d) whether there had been any ‘misrepresentation’ about any relevant matter by the employer to the employee; and

(e) whether the employee was advised at any material time and, if so, by whom; the extent of the advice, his knowledge of the facts of the case and the advice given to the employee.

Other factors to be considered were suggested in the case of Walls Meat Company v Khan [1979] ICR 52 when Brandon LJ gave the following guidance:-

“The performance of an act, in this case the presentation of the complaint, is not reasonably practicable if there some impediment which reasonably prevents, or interferes with, or inhibits such performance. The impediment may be physical, for instance the illness of the complainant or a postal strike; or the impediment may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him.”

In the case of Dedman v British Building & Engineering Appliances Ltd [1974] ICR 54, ICR 53, Lord Denning MR said:-

“If a man engages skilled advisers to act for him and they mistake the limit and present it too late – he is out his remedy is against them.”

The Dedman principle has been followed by the Court of Appeal in Marks & Spencer PLC v Williams-Ryan [2005] IRLR 562. However, the reassertion of the Dedman principle by the Court of Appeal in Williams-Ryan, does not mean that there must inexorably be a finding of reasonable practicability in every case where a claimant instructs solicitors and receives wrong advice. In the case of Reilly v Tesco Stores Ltd [1980] IRLR 103, Waller LJ indicated that there may be circumstances where there are special reasons why a solicitor’s failure can be explained as being reasonable. In Northamptonshire County Council v Entwhistle [2010] IRLR 740, Underhill J gave an example of such circumstances:-

“The situation ‘where both the claimant and the adviser have been misled as to some material factual matter (for example something bearing on the date of the dismissal, which is not always straightforward)’. (Paragraph 9)

In doing so, Underhill J noted that May LJ, in Palmer, had referred, as a relevant factor, ‘misrepresentation about any relevant matter’ and that Waller LJ had also stated in Riley it was perfectly possible to conceive of circumstances where the adviser’s failure to give the correct advice is reasonable.

4.1 The next issue to be determined by the tribunal related to what was the effective date of termination of the claimant’s contract of employment. Having considered the terms of the letter of 20 December 2011 from Dr Campbell to the claimant, in light of the authorities set out in Paragraph 3.4 – 3.5 of this decision, I concluded that the proper interpretation to be placed on the latter was that the claimant was to be dismissed immediately, with the payment being made in lieu of notice. Whilst I appreciate that it might be argued the letter was somewhat inelegantly phrased and set out, I am satisfied that the effective date of termination was 20 December 2011. In so construing the said letter, I did so on the basis of what the claimant knew at that time. Further, despite the inelegant phraseology of the letter, I do not consider the letter was ambiguous. I noted, in particular, it stated:-

“You will leave your employment on 20^th December.”

It also made provision for payment in lieu of notice. Therefore, I am satisfied the effective date of termination was 20 December 2011.

4.2 I do not consider that the claimant has established that the effective date of termination was altered/amended by the respondent from the said date of 20 December 2011 to a later date, as a result of the appeal made by the claimant. The employment contract did not, as I have found, provide for the employment contract to be kept alive during the appeal process. In my judgment, in his letter of 6 February 2012, Mr Ferris was making clear the internal appeal was dismissed. He did not, in my opinion, on a proper interpretation of the letter, seek to provide for a later effective date of termination, following the result of the said appeal, from that which had been notified to the claimant in the letter of 20 December 2011; albeit, in rejecting the appeal he did make reference to the loss of the claimant’s employment with effect from 31 December 2011, which was the date of the end of the claimant’s contract of employment, as set out in his said written contract which he entered into at the commencement of his employment. The above circumstances were therefore very different to that found in the Arfan case, where the appeal was successful and the respondent decided to extend the relevant effective date of termination and so stated. Although I do not accept that Mr Ferris did alter, on appeal, the effective date of termination in the claimant’s case, I do consider, as shall be set out later in this decision, what Mr Ferris stated in his letter is relevant to whether the claimant can make use of the ‘escape clause’ to be found in Article 147 of the 1996 Order, to enable the tribunal to have jurisdiction to consider the claimant’s claim.

4.3 Since I found that the effective date of termination was 20 December 2011, for the claimant’s claim to be in time and for the tribunal to have jurisdiction to consider the claimant’s claim, the claimant was therefore required to present his claim to the tribunal by 20 March 2012. It has now been clearly established, given the information that has been provided by the Host Server, that the claimant did not present his claim to the tribunal until 21 March 2012. The claim was therefore out of time and it was necessary for the claimant, pursuant to Article 147 of the 1996 Order, firstly, to establish that it was not reasonably practicable for the claimant to present his claim in time.

In this context, in light of the information provided by the Host Server, this is not a case, where the tribunal requires to consider delays in the post/electronic communications (see Consigna PLc v Sealy [2002] EWCA Civ 878). Further, at no relevant time, was there any physical difficulty/impediment/sickness preventing the claimant submitting his claim, in time, to the tribunal.

4.4 As set out previously, I accept the claimant was in a state of confusion about what was the effective date of termination, given the various dates that had been referred to by the respondent, since Dr Campbell had given him the letter of 20 December 2011. In particular, Mr Ferris had referred to his loss of employment with effect [tribunal’s emphasis] from 31 December 2011. The office manager of the respondent and the Payroll Department of the Council, when the claimant looked for his redundancy payment, which he had every reason to expect would be paid with his payment in lieu of notice at the end of January 2012, the first pay date following 20 December 2011, not only did not pay him at that time, but told him he was deemed to be still employed by the respondent until 31 January 2012. Indeed, this view was further confirmed when Dr Campbell wrote to the Payroll Department of the Council on 31 January 2012, to activate the claimant’s redundancy payment, and referred to the claimant’s contract ending [tribunal’s emphasis] on 31 January 2012. Further, the claimant’s P45, filled in by the respondent, did not, as one might have expected refer to his leaving of 20 December 2011 but 31 January 2012.

In the circumstances, I am satisfied that by referring to these various dates, the respondent misled the claimant on a material factual matter in relation to this date of his dismissal, which Underhill J acknowledged in Northamptonshire County Council v Entwhistle, is not always straightforward. Indeed, the one date which one might have expected the respondent to state clearly to the claimant following the letter dated 20 December 2011, was that his employment had ended, with effect, from 20 December 2011; whereas the respondent gave the claimant not only 31 December 2011 but also 31 January 2012. Although sensibly the claimant was attempting, by erring on the side of caution, to present his claim to the tribunal in good time before 31 March 2012, being three months from 31 December 2011, the date referred to Mr Ferris’ letter rejecting his appeal, I accept, in the circumstances, he was in no rush, as he prepared his claim on 20 March 2012 and 21 March 2011, when he finally submitted his claim to the tribunal. As stated previously, May LJ in Palmer and Saunders referred to a number of factors in relation to the issue whether the test of reasonably practicable had been satisfied, including:-

“Whether there had been any ‘misrepresentation’ about any relevant matter by the employer to the employee.”

Similarly, Braden LJ in Walls Meat Company referred to a claimant having a mistaken belief with regard to essential matter, which itself was reasonable. Given the conflicting signals which were given to the claimant by the respondent in relation to the date when his employment ended, as set out above, the claimant’s belief was reasonable. The claimant had consulted solicitors and had been given proper advice by his solicitors that, if he wished to bring a claim of unfair dismissal to the tribunal, he required to do so within three months from effective date of termination. At that time, the claimant had not finally decided to bring a claim against his employer and did not seek from his solicitors any specific advice about what was the actual effective date of termination of his employment in the particular circumstances of his case and/or the date when the said three month period began or ended. If his solicitors had given him specific advice on such matters, I think it is unlikely that the claimant would have taken it upon himself to look at Article 129 of the 1996 Order in relation to how effective date of termination is defined. He did not further consult with his solicitors or ask his solicitors to present the claim on his behalf. Even if his solicitors had given him wrong advice, about the effective date of termination and/or when the three month period began or ended, I think that, in light of the various other dates given by the respondent, following the letter of 20 December 2011, that this would be one of those cases where an adviser’s failure to give correct advice may well have been reasonable. In the event, on the facts as found by me, as set out above, it was not necessary for me to determine that issue.

4.5 In the circumstances, I therefore was not satisfied it was reasonably practicable for the claimant’s claim to be presented before the end of the said period of three months. Having so concluded, it was then necessary for me to consider whether the claim had then been presented within a reasonable time after 20 March 2012. The claim was presented during the afternoon of 21 March 2012 and I had little difficulty in accepting that the claimant had in fact presented his claim within a reasonable time after the said date. Indeed, subject to the tribunal’s decision on the matters referred to above, the respondent’s representative properly, in my view, did not attempt to suggest otherwise.

5.1 The tribunal therefore has jurisdiction to consider the claimant’s claim of unfair dismissal, pursuant to Article 145 of the Employment Rights (Northern Ireland) Order 1996. A Case Management Discussion will be arranged for the tribunal to make such further case-management directions/orders, as may be necessary and appropriate, for the substantive hearing of this matter; and the parties will be notified, in due course, of the date and time of the said Case Management Discussion.

Chairman:

Date and place of hearing: 31 August 2012; and

28 September 2012, Belfast

Date decision recorded in register and issued to parties: