EAT Jurisdictional Points : Claim In Time and Effective Date of Termination
UNFAIR DISMISSAL – Dismissal/ambiguous resignation
A claim for unfair dismissal was held out of time on the basis that the dismissal occurred on 1 November, but the ET1 was filed on the following 15 February. The Claimant asserted that the EDT was 29 November, since there was no gross misconduct, she was entitled to notice, and had been told she would receive notice pay. She said giving her notice was what the parties intended. Her claim for discrimination on the ground of her disability relied on dismissal as the last identified act, and in the absence of any evidence or submission that it was just and equitable that time should be extended the Employment Tribunal held that out of time too.
Held. An Employment Tribunal had to approach the question whether a dismissal was with or without notice objectively. The intention of the parties could be derived only from what they did and what the surrounding circumstances showed was probable. If, objectively viewed, there was a dismissal without notice it did not matter that this would be a breach of contract by the employer or that the employer may not have intended it: there was only a very limited role for evidence of one party’s expressed intention. Objectively, the Employment Tribunal was entitled to conclude there was a dismissal on 1 November.
A submission that the rejection of the appeal against dismissal was an act of discrimination, and because of its date extended time for the acts relied on to within three months of the claim, asserted a continuing act of which there was no sign in the ET1, where the last act relied on had been dismissal itself. This submission was rejected. The process of appeal did not in this case extend time to within the primary period. Since the Employment Tribunal was not bound to consider if time should be extended without there being evidence or submission to that effect, the appeal was dismissed. An application for costs was rejected.
Langstaff P J
[2014] UKEAT 0004 – 14 – 1006
Bailii
England and Wales
Citing:
Cited – Adams v GKN Sankey Ltd EAT 1980
The employee had been given twelve weeks notice of redundancy dismissal, and was not required to attend work during the notice period, but then worked additional days. A letter was written in November stating ‘you are given 12 weeks’ notice of . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 22 December 2021; Ref: scu.537750
