Scerbaks v Pertemps Recruitment Partnership Ltd

An unfair dismissal claim must be presented within three months of the effective date of termination. Where the evidence supports a finding that termination occurred before the limitation period began, the claim is out of time. An extension requires the statutory conditions to be met, including that it was not reasonably practicable to present the claim in time. On appeal, disagreement with factual findings is insufficient. A perversity challenge requires an overwhelming case that the decision was one which no reasonable tribunal could reach.

Mr Scerbaks appealed from a decision of Employment Judge Warren, sitting at a preliminary hearing, that his unfair dismissal claim was out of time. The claim was presented on 7 March 2009. The central issue was whether the effective date of termination was 8 December 2008 or later, so that the claim would fall within the three-month limitation period.

The Employment Judge found that the employment ended on 5 December 2008, when the respondent’s representative told Mr Scerbaks that he was no longer required on the relevant agency contract and accepted his subsequent conduct as a resignation.

1. Appeal dismissed. The Employment Judge was entitled to find that the effective date of termination was 5 December 2008. The claim presented on 7 March 2009 was therefore three days out of time under sections 97 and 111 of the Employment Rights Act 1996.
2. The Employment Judge had unsatisfactory evidence from both sides. He was entitled to assess the way in which the witnesses gave evidence, consider the documentary and other material, and prefer the respondent’s evidence. The finding that the appellant had resigned was open to him on the evidence.
3. The appellant identified no relevant event on or after 8 December 2008. The suggested constructive dismissal based on the respondent’s non-response by that date was characterised as reasoning after the fact and could not establish the necessary effective date of termination.
4. The appeal did not satisfy the demanding test for perversity. Applying the approach in Yeboah v Crofton [2002] EWCA Civ 794, an overwhelming case was required. No error of law or perversity was established.
5. The Employment Judge’s decision stood. The Employment Appeal Tribunal accepted the respondent’s written submissions without calling on counsel.

• Employment Appeal Tribunal: Appeal from the decision of Employment Judge Warren, registered with reasons on 29 August 2009, dismissed. The finding that the claim was out of time was upheld.