Robinson v Bowskill

For the purposes of calculating the time limit for an unfair dismissal claim, termination becomes effective when the employee knows of the dismissal or has had a reasonable opportunity to discover it. That communication may occur through a third party, including the employee’s solicitor, provided the employee thereby acquires the relevant knowledge. No particular formality or direct communication is required.

Where a claimant has entrusted a discrimination claim to a solicitor or experienced representative, the solicitor’s delay may constitute a satisfactory explanation for late presentation. The solicitor’s negligence should not ordinarily be attributed to the claimant when deciding whether it is just and equitable to extend time.

The Claimant’s unfair dismissal and disability discrimination claims were dismissed by an Employment Judge as out of time. She had been summarily dismissed following disciplinary proceedings. The dismissal was communicated to her solicitor on 6 July 2011 and by the solicitor to the Claimant on 7 July, although the Claimant did not receive the employer’s confirming letter until 8 July.

The Employment Judge treated 7 July as the effective date of termination but refused to extend time for the discrimination claim. The appeal concerned whether communication through the solicitor could establish the effective date of termination and whether the Employment Judge had properly approached the just and equitable discretion.

1. The appeal concerning unfair dismissal was dismissed. The effective date of termination was 7 July 2011, when the Claimant learned of the dismissal through her solicitor. The principle in Gisda Cyf v Barrett required knowledge of the dismissal, or a reasonable opportunity to obtain that knowledge, but did not require a formal letter or direct communication by the employer.

2. Communication by the employer to a third party, followed by communication of the dismissal to the employee, may satisfy that principle. The relevant question is whether the employee knows of the dismissal or has a reasonable opportunity of finding out. The fact that the dismissal letter had not yet been received did not prevent the effective date arising when the Claimant acquired the necessary knowledge.

3. The effective-date issue was a question of mixed fact and law because the primary facts were undisputed and the issue was the legal effect of those facts.

4. The appeal concerning disability discrimination was allowed. In exercising the discretion under section 123(1)(b) of the Equality Act 2010, the Employment Judge erred by treating solicitor delay as a reason to refuse an extension. Virdi v Commissioner of Police for the Metropolis established that putting a claim in the hands of solicitors is capable of being a satisfactory explanation and that the solicitor’s errors should not ordinarily be visited on the claimant.

5. Although appellate intervention in a discretionary decision is exceptional, the error of principle justified intervention. Since the other relevant factors favoured the Claimant, remission was unnecessary. The time for presenting the disability discrimination claim was extended to the date on which it was presented.

• Employment Tribunal: The unfair dismissal and disability discrimination claims were dismissed as out of time.
• Employment Appeal Tribunal: The unfair dismissal appeal was dismissed. The disability discrimination appeal was allowed, and the time limit was extended to the date of presentation.