EAT Jurisdictional Points: Claim In Time and Effective Date of Termination – JURISDICTIONAL POINTS – Extension of time: reasonably practicable – Unfair dismissal – early conciliation – whether claim brought in time – section 207B(4) Employment Rights Act 1996 (as amended) (‘ERA’) – The effective date of termination of the Claimant’s employment had been 20 March 2015. The relevant notification to ACAS for early conciliation (‘EC’) purposes was made on 18 June 2015. On 30 June, the EC certificate was emailed to the Claimant’s solicitors. On 31 July, the Claimant’s claim (complaining of unfair dismissal and disability discrimination) was lodged with the Employment Tribunal (‘ET’). By its ET3, the Respondent contended the claim had been presented one day out of time. The ET agreed, holding that, whilst it was just and equitable to extend time for the purposes of the discrimination claim, it had been reasonably practicable to lodge the unfair dismissal claim in time but the Claimant had failed to do so.
On the Claimant’s appeal, contending the ET had wrongly construed section 207B(4) ERA 1996: –
Held: dismissing the appeal – Stopping the clock for EC purposes brought into play the provisions of section 207B(4). The period in question for these purposes started on 18 June 2015 (Day A) and ended one month after Day B, which was 30 June 2015. In determining what was one month after, the ET had (i) understood ‘month’ to mean ‘calendar month’ (on which no issue was taken) and (ii) had applied the corresponding date principle. That meant that time expired on 30 July and thus the claim had been presented out of time. The corresponding date principle had been approved by the House of Lords in Dodds v Walker [1981] 1 WLR 1027 HL, specifically ruling that this meant that time ran from the date of the event in question to the corresponding date in the following month, even where the relevant Rule or provision used the term ‘after’. The Claimant argued it was appropriate to see section 207B(4) as an example of the small minority of cases that Dodds allowed might fall outside the corresponding date principle; it involved a single month rather than a plurality of months. Dodds expressly spoke of a month or months, however, and there was no reason in principle why the principle should not apply in the former case. This approach had the attraction of clarity and simplicity. It was, furthermore, binding on this Court given the ruling in Dodds. The Claimant had identified no other basis of distinction, and the appeal must be dismissed.
Eady QC HHJ
[2016] UKEAT 0022 – 16 – 0802
Bailii
England and Wales
Employment
Updated: 14 January 2022; Ref: scu.562541