Employment Tribunals were originally set up in the 1960s as a forum for employers and employees to settle disputes quickly, easily and cheaply between themselves without the need to involve lawyers; sadly, like so many dreams from those simpler times, those sensible ideals have disappeared under the weight of fifty years of reality, political interference, detailed legislation and conflicting (and sometimes inconsistent) cases.
As a result it’s really important to get proper advice at a very early stage if you are even thinking about making a claim in the Employment Tribunal.
Making a Claim
One of the easiest things, you’d think, would be working out the deadline for making a claim to the Tribunal – most common cases e.g. for unfair dismissal, discrimination and unlawful payments have to be brought within three months of the “Effective Date of Dismissal” or the deduction or act of discrimination, etc. being complained about, although for some claims for Redundancy payments and Equal Pay you have six months to make your claim.
By way of example, if you are dismissed on the 15th August you would need to make your claim for unfair dismissal by the 14th November (because three months is actually three months less one day) and if you are dismissed on 30th November you need to make your claim by the 28th February (unless it’s a leap year).
The Tribunal sometimes has the power to extend time for a claim if it was “not reasonably practicable” to present the claim in time, but ignorance of the right to claim, bad advice, delays in the post (or online submissions) and (in some circumstances) serious illness have all been said not to amount to good reasons for extending time. It is very unwise to hope that the Tribunal will exercise its discretion to allow a late claim, even if it’s only by a matter of minutes.
What is the Effective Date of Termination (“EDT”)?
Again, you’d think it’s simple but the EDT can vary depending on whether a person has been dismissed on notice (in which case it’s when the notice expires) or with pay in lieu of notice (in which case it’s normally the last day the person actually attended work). And when someone is dismissed by letter it’s when the employee actually reads (or has had a reasonable opportunity to have read) the letter.
If the person appeals the dismissal, the dismissal still takes effect regardless of the ongoing appeal, but if the employer dismisses the employee without giving them their statutory notice the EDT will be taken to be the day when the statutory notice would have expired … unless it’s a summary dismissal (e.g. immediate dismissal for example for gross misconduct) when it is the day of the dismissal.
Continuing Course or Isolated Act
When you are looking at claims for discrimination and deductions from wages you can get into all sorts of questions about whether an act is part of a continuing course of conduct, in which case (usually) only the date of the last act needs to be within the relevant time limit, or a series of independent acts, in which case each individual act relied upon would have to have occurred within the time for claiming.
The Effective Date of Termination can be even more significant if there is an issue as to whether you have sufficient “continuous employment” to be able to make a claim, e.g. for unfair dismissal you need to have been employed for two years by the EDT.
In addition, it can make a difference as to whether or not you can make various claims depending if you are an “employee” or a “worker” or, in the new “gig economy” if you are said to be “self-employed” and/or if you are engaged under a contact of employment or a contract for services.
All of the issues I have highlighted above are procedural or technical matters – they are the hurdles you need to clear before you can even get the Tribunal to consider whether, on the facts of your case, you were unfairly dismissed, discriminated against or had pay deducted improperly.
In my next article [add link] I shall look at the additional effects of the obligatory Early Conciliation process on the time limits for making a claim in the Employment Tribunal
In short, given the minefield of statutory requirements you need to negotiate in order to issue a valid claim, it is vitally important that you get proper professional advice at a very early stage if you are considering making a claim in the Employment Tribunal; advice is available from the CAB, solicitors and, under the Direct Access Scheme, from specialist employment barristers.