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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Keenan v H A Emerson & Son Ltd [2017] NIIT 00017_17IT (19 May 2017) URL: http://www.bailii.org/nie/cases/NIIT/2017/00017_17IT.html Cite as: [2017] NIIT 00017_17IT, [2017] NIIT 17_17IT

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THE INDUSTRIAL TRIBUNALS

 

CASE REF:  17/17

 

 

 

CLAIMANT:                          Grainne Keenan

 

 

RESPONDENT:                  H A Emerson & Son Ltd

 

 

 

PRE-HEARING REVIEW DECISION

The decision of the tribunal is that the claimant’s claim is dismissed for being out-of-time and the tribunal therefore has no jurisdiction to entertain it.

 

 

Constitution of Tribunal:

Employment Judge (sitting alone):       Employment Judge Murray                    

                       

 

Appearances:

 

The claimant was represented by Mr McWhinney, Barrister-at-Law instructed by
J J Haughey Solicitors.

 

The respondent was represented by Ms Walls of Peninsula Business Services Ltd.

 

 

1.         The issue for the tribunal was whether or not the tribunal has jurisdiction to entertain the claimant’s unfair dismissal claim in light of the relevant time-limit provisions contained in the Employment Rights (Northern Ireland) Order 1996 (ERO).  I heard evidence from the claimant on her own behalf and was referred to documentation by both sides.  I took account of the oral and written evidence together with the contents of the claim and response forms in finding the following facts and reaching the following conclusions.

 

2.         The relevant law can be briefly stated.  Article 145 of ERO outlines that complaints of unfair dismissal must be presented within three months of the effective date of termination (EDT) and a tribunal does not have jurisdiction to entertain such a claim unless it was not reasonably practicable to present the claim in time.  Even if it was not reasonably practicable to present the claim within the time-limit, the tribunal may not entertain it, if it was not presented within a further reasonable period.

 

3.         Article 145 states as follows:

 

“145.- (1)     A complaint may be presented to an industrial tribunal against an 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.”

 

4.         The EDT is defined at Article 129 which states where relevant as follows:

 

            “Effective date of termination

 

129. ‒ (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.”

 

5.         The determination of the EDT is a matter of fact for the tribunal.

 

6.         The “Dedman principle” applies in this case, which is to the effect that if a claimant engages solicitors to act for her, it will normally be presumed that it was reasonably practicable to present the claim in time and as Lord Denning MR states in that case:

 

“Dedman v British Building and Engineering Appliances Ltd 1974 ICR 53 CA ‘if a man engages skilled advisors to act for him - and they mistake the time limit and present the claim too late, he is out.  His remedy is against them.’” 

 

7.         This is a claim of alleged constructive dismissal.  The claimant resigned by letter dated 30 August 2016.  That letter states as follows:

 

“30/08/2016

 

Dear Mr G Emerson

 

I am writing to inform you that I am resigning from my position as buyer with immediate effect.

 

Please accept this letter as my formal notice and termination of my employment contract with the company.

 

I have been left with no option but to leave due to all events outlined in correspondence from my solicitor and more recently in light of recent experiences regarding my sick leave from 18/01/2016 and return to work 29/03/2016.

 

Furthermore on Friday 26^th August I received an email from the company stating that they had withheld my statutory sick pay without agreement or consultation.

 

Please be advised that I have instructed my solicitor to initiate constructive dismissal proceedings.

 

Please ensure my further correspondence is through my solicitor.

 

Yours Sincerely

 

Grainne Keenan”

 

8.         The claimant contended that the EDT was 17 September 2016, which was the date on her P45.  I reject the arguments put forward for the claimant, namely that she expected a response from Mr Emerson to her letter of resignation.  The height of the point made in this regard was that she expected a redundancy package to be offered to her.  The claimant was quite candid that at no point did she expect to return to work after her letter of resignation.  I reject the contention that the EDT in this case depends on the claimant’s understanding of the position as this is a case of an unequivocal written resignation and the EDT is therefore clear.  I find the letter to be the claimant’s unequivocal resignation with immediate effect.  I therefore find that the EDT in this case is 30 August 2016.

 

9.         The claim form was presented to the tribunal on 19 December 2016, albeit that it was signed and dated by the solicitor on 30 November 2016.  The claim form was therefore presented 19 days outside the three month time-limit as the EDT is 30 August 2016.

 

10.      A medical report was provided to the tribunal which indicated that the claimant attended on a regular basis between 2015 and 2017 with her doctor in relation to “work-related stress with depression”.  It was clear from the medical report that the claimant has been on anti-depressant medication since January 2015.

 

11.      At the key period relevant for these proceedings, namely the period leading up to 30 August 2016 and the period between that point and the presentation of the claim form, the claimant attended on two occasions with her GP.  No detail was given in the GP report in relation to the claimant’s state of mind at that point and whether there were particular problems at that point.

 

12.      The claimant’s evidence was that, due to her mental health difficulties and the medication she was on, she was not in a fit state to give coherent instructions to her solicitor.  The claimant’s case was that she extremely stressed, following her alleged treatment, losing her job, being unable to sign on for benefits because she had not received her P45 and she was particularly stressed about the prospect of making a claim and the associated costs of a claim.  The claimant assumed that once a claim form was presented, she would have to pay her solicitor’s costs, but was clear in her evidence that she was not told this by the solicitor.

 

13.      The claimant undertook her own researches and knew that legal aid was not available for such claims.  The claimant was also fit to undertake internet searches in relation to constructive dismissal before drafting her letter of resignation.

 

14.      It was clear from the evidence before me that the claimant attended with her solicitor on a regular basis, that she knew she had the potential for a claim before she resigned, that she drafted her letter of resignation herself, that she was fit to take it to her solicitor for her to look at it before it was sent to the employer and no amendments were made by the solicitor.  Whilst the claimant gave evidence that between the period of March and October 2016, her medication was so heavy that she effectively spent most of her time in bed, she was fit to attend with her solicitor before the letter of resignation and she was fit to draft the letter of resignation dated 30 August 2016 herself in the terms set out at paragraph 7 above.

 

15.      On the evidence before me, I do not accept that the claimant’s medical difficulties were such that she was unable to give instructions to the solicitor to launch proceedings on her behalf.  The claimant could give no explanation for the delay between the date the claim form was signed and the presentation of that form 19 days later.  The only point put forward by the claimant in this regard was that she was unsure as to whether she could undertake the stress and expense of launching proceedings.  She stated that she had not been told by her solicitor that she would have to pay legal costs as soon as proceedings were lodged.

 

16.      Correspondence from the employer in response to the claimant’s letter of resignation was very clear.  In the letter of 31 August 2016, the employer states as follows where relevant:

 

“I am now writing to ask whether this is really what you want to do.  I am concerned there could be some underlying issues in respect of your employment with us, which we need to address.

 

...

 

If you wish to reconsider your decision to resign, then please let me know within the next 5 days, namely by 9^th September at the latest.

 

If you decide not to retract your resignation then we will respect your wishes, and process the termination of your employment and forward any monies which may be outstanding.”

 

17.      In the respondent’s letter of 15 September 2016 they state where relevant as follows:

 

“When you resigned on 31^st August you indicated that you had some issues with your employment, which caused us concern.

 

I therefore wrote to you on 31^st August asking you to reconsider your decision and offered you the opportunity to raise a formal grievance in line with our procedures in an attempt to resolve the matters of concern.

 

I offered you five days to retract your resignation and to raise a formal grievance.

 

You did not raise a formal grievance and have not retracted your resignation.  Therefore, as advised in our letter of 31^st August I will respect your wishes and formally accept your resignation and your decision not to pursue the formal grievance procedure.”

 

18.      The date on the P45 is no more than one consideration if the date of the EDT is unclear.  In this case, I find that the date of the EDT is clear, in that the claimant’s resignation was unequivocal and it was stated to be of immediate effect.

 

19.      The burden of proving that the claim could not be presented within the time-limit is on the claimant.  The test to be applied is whether it was reasonably feasible for the claimant to present the claim within time.  In this case, the claimant had the benefit of legal advice throughout the period.  Despite her medical difficulties, she was able to draft and send her letter of resignation.  It was open to the solicitor to lodge the proceedings protectively within the time-limit, if it was the case that the claimant’s medical difficulties meant that she could not give instructions coherently.  To be clear, there was no medical evidence before me to say that the claimant was not capable of giving coherent instructions to her solicitor in the relevant period.

 

20.      It is noteworthy that in this case, on 5 July 2016, the claimant’s solicitors wrote to the respondent stating in their letter: “we have instructions to advance a claim for constructive dismissal”.  Whilst this was before the date of resignation, it shows that the claimant and her advisors were well aware that there was a claim potentially for constructive dismissal.  Indeed, the claimant’s oral evidence was that she also knew that she had that type of claim, following her own researches.

 

21.      Having assessed all the evidence before me, I therefore find that it was reasonably practicable for the claimant to present her claim form within the three months following the EDT.  I also find that the claimant delayed too long in presenting the claim form after the time-limit had expired.

 

22.      In summary, the claimant did not present her claim form within the requisite time-limit.  It was reasonably practicable for her to do so.  As the claim was presented outside the time-limit, the tribunal has no jurisdiction to entertain it and the claimant is dismissed in its entirety.

 

 

Employment Judge:

 

 

Date and place of hearing:   27 April 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: