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Extending time for claim when solicitor is at fault

Posted by TonyBrownEmploymentSolicitor on November 11, 2013

In the next case, a claimant appealed against the judgment of the tribunal dismissing her claims for unfair dismissal and disability discrimination on the grounds that the claims had been lodged outside the three-month time period for starting such claims and it was not just and equitable to extend the time.

The Claimant did not attend her disciplinary hearing and was communicating with her employer through a solicitor. The employer e mailed the solicitor on 6 July to inform her that the Claimant had been dismissed; the solicitor told the employee of the decision on 7 July and advised her to appeal; the employee read the dismissal letter from the employer on 8 July.

At a pre-hearing review, the employment tribunal ruled that the effective date of termination was 7 July, so the claims were struck out as out of time as they were presented a day late on 7 October and it was not just and equitable to extend time for presenting the claim.

The EAT upheld the tribunal’s decision that the claims were out of time on the basis that dismissal is effective when it is communicated to an employee or she has a reasonable opportunity to know of it, and that communication of dismissal through a third party suffice. Accordingly, in this case, as the effective date of termination was 7 July, the Claimant's claim was started a day too late.

However, in deciding whether it was just and equitable to extend time for the discrimination claim, the tribunal had made a mistake in not taking into account the principle that the sins of the Claimant's solicitor in this context, are not to be visited on the Claimant. As the delay was attributable to the solicitor, the EAT substituted a finding that time for presenting the discrimination claim should be extended.

Comment

It is well established that a claimant cannot be held responsible for the failings of his solicitors. For that reason it is not legitimate for a tribunal to refuse to extend time merely on the basis that the solicitor has been negligent. So whatever the reason why the solicitors failed in their duty would be immaterial when assessing the claimant's culpability for a claim being late.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

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