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Time is ticking …

Yesterday I referred to the case of The Secretary of State for Justice v Hibbert. The case is not in of itself an important one as it does not alter the way employment law operates in the UK but does provide a useful reminder on the importance of erring on the side of caution when calculating the time limits for an employment tribunal claim.

In Hibbert the claimant communicated to her employer, a public sector prison, her resignation on 29 June 2012 (it was hand delivered on that day). The resignation followed a number of alleged failings by the employer in the handling a grievance she had submitted some month’s previously and concluded with the statement that there “has been a fundamental breach of my employment contract by my employer and I have no alternative but to resign my position.”

Wisely, the employer offered the option to reconsider the matter but the decision to resign was maintained. By agreement, the respondent and claimant agreed that the actual date of termination of the contract would be at the end of her notice period of four weeks (on 27 July 2012).

Section 111(2) of the Employment Rights Act 1996 requires that a complaint of unfair dismissal must be made within three months of a dismissal and the question of when a dismissal take place. In Hibbert the claimant submitted her tribunal claim before the three months window beginning on 27 July (the end of the claimant’s notice period) expired but after 28 September 2012 (the end of the three months of the date of resignation). The question for the tribunal was whether the claim was in time; the decision of the EAT was that it was not, even though both the claimant and Respondent had worked from the later date.

The important issue the case raises is that when a rep or a member is considering an employment tribunal claim for unfair dismissal, and especially for constructive unfair dismissal, it is important to err on the side of caution and treat the date of resignation as the date the resignation is made even if the employer considers the date to be later. In fact, unlike usual dismissals when the effective date of termination is normally when the dismissal is communicated to the other side which can be a few days later in constructive dismissal claims it appears the date is the date of the first communication even if an employer does not here about it for a few more days (see Horwood v Lincolnshire County Council). If in any doubt, it is normally advisable to use the earliest doubt as by not doing so it keeps alive the possibility that the tribunal will use the strict time limits to deny the opportunity of the employee to challenge their treatment.

Cases Referenced:

Horwood v Lincolnshire County Council [2012] UKEAT 0462_11_0304

Secretary of State for Justice v Hibbert [2013] UKEAT 0289_13_3007

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