Fadipe v Reed Nursing Personnel

For permission to appeal, the applicant must show a real prospect of success on a point of law arising from the tribunal’s decision. An unfair dismissal occurs at the effective date of termination. Continuing financial or employment consequences do not convert the dismissal into an act extending over a period for the purposes of Employment Rights Act 1996, section 111. Time may be extended only where it was not reasonably practicable to present the complaint within the prescribed period. A separate complaint that an employer or former employer caused detriment through an unsatisfactory reference may raise an arguable jurisdictional issue under section 44 and the relevant health and safety directive. Where that issue requires full argument, permission should be granted without determining the merits.

Mr Fadipe, an auxiliary nurse supplied by Reed Nursing Personnel to NHS Trust hospitals, complained to an Employment Tribunal of unfair dismissal and detriment arising from an allegedly unsatisfactory reference. The Tribunal dismissed the unfair dismissal complaint as out of time and held that it had no jurisdiction over the reference complaint. The Employment Appeal Tribunal dismissed his appeal at a preliminary hearing.

Mr Fadipe applied to the Court of Appeal for permission to appeal. The issues were whether the dismissal claim could be treated as arising from continuing acts and whether the reference complaint raised an arguable issue under the health and safety provisions of the Employment Rights Act 1996 and Council Directive 89/391/EEC.

1. Permission standard. An applicant must show a real prospect of success on a point of law arising from the Employment Tribunal’s decision. There is no appeal on a question of fact. An appeal against a discretionary extension of time requires an error of principle or failure to consider relevant factors.
2. Unfair dismissal. Permission was refused on the dismissal claim. Section 111 of the Employment Rights Act 1996 requires the complaint to be presented within three months beginning with the effective date of termination, subject to the statutory extension where presentation was not reasonably practicable. Parliament treats dismissal as occurring at a point in time. Its continuing consequences do not make it an act extending over a period. The statutory provisions applicable to discrimination claims could not be imported into section 111. The Tribunal was entitled to find that the claim was out of time and to refuse an extension.
3. Reference complaint. The Court did not determine whether the complaint was substantively maintainable. It held that the Tribunal’s interpretation of Coote v Granada Hospitality Ltd was not sufficiently clear to dispose of the jurisdictional issue. The alleged detriment through an unsatisfactory reference raised a substantial point in the context of section 44 and Articles 4 and 11 of Council Directive 89/391/EEC. Permission was therefore granted for that part of the appeal to proceed to a full hearing.

Order: Application allowed in part.

• Employment Tribunal: The claims were dismissed. The unfair dismissal claim was out of time, and the reference complaint was held to be outside the Tribunal’s jurisdiction.
• Employment Appeal Tribunal: The appeal was dismissed at a preliminary hearing. No citation is stated in the judgment.
• Court of Appeal: Permission to appeal was refused on the unfair dismissal issue but granted on the jurisdictional issue concerning the alleged detriment caused by an unsatisfactory reference.