Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 251/15

 

 

 

CLAIMANT: James Wilton

 

 

RESPONDENT: Bombardier Aerospace Short Brothers Plc

 

 

DECISION ON A PRE-HEARING REVIEW

 

The decision of the tribunal is that the claimant's claim is dismissed as it was presented outside the time-limit and the tribunal therefore has no jurisdiction to consider it.

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone): Employment Judge Murray

 

 

Appearances:

 

The claimant represented himself.

 

The respondent was represented by P Bloch of EEF Northern Ireland.

 

 

 

 

REASONS

 

1. The issues to be determined at this Pre-Hearing Review were as follows:

 

(1) The effective date of the claimant's termination of employment.

 

(2) Whether the claimant's complaint of unfair dismissal was presented to the tribunal before the end of the period of three months beginning with the effective date of termination.

 

(3) If not, whether it was reasonably practicable for the claimant to have presented his claim before the end of that period of three months.

 

(4) If not, whether the claimant presented his claim within a further reasonable period.

 

2. The first issue to be determined was the effective date of termination (EDT). On the claimant's case his date of dismissal was 22 November 2014 which was the date from which Social Services paid his benefits. The respondent's case was that the claimant was sacked with effect from 7 November 2014 but, as this was only communicated to the claimant by letter of 11 November 2014, the respondent's case at hearing was that the EDT was 11 November 2014.

 

3. I accept Mr Wilton's evidence that he received the letter of 11 November 2014 on 12 November 2014 as this was the date on which the claimant wrote to the respondent in response to their letter of dismissal. In these circumstances I find that the EDT was 12 November 2014 being the date upon which the claimant became aware that he had been dismissed without notice following a disciplinary hearing on 6 November 2014.

 

4. The claimant argued that he had payslips in November and December showing payment of SSP up to week ending 19 December 2014. He also argued that his P45 was not sent to him until January and that reference to week 40 at Part 7 of the P45 meant that the claimant was still "on the books" at that stage in December. I reject that argument. The P45 reflects the employer's belief that the claimant had been sacked with effect from 7 November 2014. The reference to week 40 relates to the payslips showing the SSP which was paid.

 

5. I have considered the correspondence to which I have been referred together with Mr Wilton's evidence and I am satisfied that the employer made it clear that the claimant was dismissed with effect from 7 November 2014. The claimant acknowledged his understanding in writing that he had been dismissed by the employer. The contents of the payslips and the P45 do not alter the position which in my judgement is that the claimant was summarily dismissed. The legal authorities are clear that the EDT relates to the date upon which the claimant became aware of the dismissal which in this case was 12 November 2014.

 

6. The claimant therefore had until 12 February 2015 to present his claim for unfair dismissal to the tribunal. The claim form was presented on 20 February 2015 and was therefore eight days late.

 

7. It is for the claimant to persuade the tribunal that it was not reasonably practicable for him to present his claim form within the time limit. The claimant relies on the following points in that regard:

 

(1) That he was not sure of the date of this dismissal but assumed it was
22 November 2014 because that was the date that his Social Security benefits were paid from;

 

(2) that his lack of experience and knowledge of the tribunal should be considered to have the time limit extended;

 

(3) that it was inept, and possibly deliberate, of management to cause confusion about the date to ensure that the claimant was late in presenting his claim;

 

(4) that the company dragged out the consideration of his application for ill-health retirement and it was only on 11 February 2015 (when the claimant received notification that his pension would not be payable until his retirement date), that he decided that he would have to take action by lodging a claim in the tribunal;

 

(5) the claimant believed he had 90 days to present his claim and he believed that he had until 20 February 2015 to do so.

 

8. The claimant has not persuaded me that it was not reasonably practicable for him to lodge his claim form within the time limit and I therefore refuse to extend time. My principal reasons for so finding are as follows.

 

9. The claimant took advice on several occasions from a Citizen's Advice Bureau in November and December 2014 which was both before and immediately after his dismissal. He had the benefit of verbal and written advice from the CAB in relation to a potential claim and was advised specifically of time limits and that he could be referred to a solicitor if necessary in order to present a claim. The claimant specifically discussed the ill-health retirement issue and was told by them that they could not advise on that. This should have highlighted to the claimant that this issue and the dismissal issue were separate.

 

10. Despite being in receipt of advice from a CAB at various points, the claimant did not seek advice about the dates on the P45 and payslips which did not accord with his belief about the date on which he was dismissed.

 

11. The claimant's primary focus was to obtain ill-health retirement pension which he had applied for in May 2014. It is clear from the correspondence that for that application to progress it was for the claimant to initiate and pursue matters so that medical information could be provided to enable that to be considered. I do not accept that the respondent deliberately delayed the consideration of that matter at all, never mind with a view to delaying the claimant in pursuing a claim to the tribunal for unfair dismissal. I do not accept the claimant's suggestion that he was confused about that process as the respondent's letter of 3 February 2015 makes clear that nothing further would occur until the claimant took steps to pursue the matter.

 

12. The claimant made reference in tribunal to his long-standing medical difficulties. However none of the medical difficulties had a bearing on the time-limit issues given the correspondence back and forth over several months in relation to several matters and given the specific advice from the CAB. I find that there was no medical reason for the claimant not to pursue his claim by lodging a tribunal form particularly in circumstances where the claimant had previously made two claims to the tribunal and should therefore have been sufficiently familiar with the process and the time-limits to know that he had to move quickly in order to protect his position.

 

13. This is not a case where the claimant was ignorant of time limits as he confirmed that he was aware of his rights. He had access to and availed of advice but delayed in protecting his position for no good reason.

 

14. The payment of SSP after the date of termination is not determinative of the EDT. In all the circumstances and in light of all the other evidence I am satisfied that the payment of SSP does not alter the position that the EDT was 12 November 2014.

 

15. The claimant also alleged that as appeal procedures were ongoing that he was still an employee until the outcome of that procedure. I reject that argument given the nature of the correspondence and in light of the legal authorities to which I was referred by Mr Bloch namely J Sainsbury Ltd v Savage 1981 ICR 1 CA and Tipton 1986 ICR 192 HL . Both authorities confirm that the existence of an appeal procedure does not alter the date of dismissal except in unusual circumstances, none of which are relevant to this case.

 

16. In summary therefore I find that the EDT was the 12 November 2014, the claim form lodged on 20 February 2015 was eight days late, it was reasonably practicably for the claim form to be lodged within the time limit and I therefore decline to extend time.

 

17. As the claim was lodged outside the time limit the tribunal has no jurisdiction to entertain it and the claim is dismissed in its entirety.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 17 June 2015, Belfast.

 

 

Date decision recorded in register and issued to parties: