R Olyazadeh v Newcastle University

Where a claimant explains that a confused procedural history caused a reasonable belief that a further claim was unnecessary or premature, the tribunal must consider that explanation when deciding whether timely presentation was reasonably practicable. A finding that no explanation was given is an error where such an explanation was advanced. If the tribunal rejects the explanation as insufficient, it must give adequate reasons.

An employee's conduct and communications may establish an immediate resignation. An employer's willingness to permit the resignation to be withdrawn does not retrospectively fix the termination date. There is no statutory presumption that a termination not expressly described as summary takes effect only after notice.

The claimant had presented a first claim while her employment status remained unclear. At a later preliminary hearing, the Employment Tribunal indicated that the first claim might have been premature. The claimant then brought a second claim for unfair dismissal and notice pay.

Employment Judge Langridge held that the effective date of termination was 18 April 2023 and that the second claim was out of time. The judge further held that it had been reasonably practicable to present it in time.

On appeal, the claimant challenged both the reasonable-practicability decision and the finding that her resignation took effect on 18 April 2023. The central issues were whether the tribunal had addressed her explanation for delay and whether the termination date was correctly determined.

1. The appeal was allowed in part. Ground 1 succeeded. The tribunal erred in deciding that the claimant had identified no reason why timely presentation was not reasonably practicable and that there was no explanation for her failure to act before 24 August 2023.

2. The claimant had expressly advanced an explanation. Her case was that, because of the confused history of the first proceedings, she believed that she had already brought a constructive-dismissal claim and only understood after the preliminary hearing that a further unfair-dismissal claim was needed. The Employment Judge had to assess whether that belief, and the procedural history which produced it, made timely presentation not reasonably practicable under Employment Rights Act 1996, section 111(2)(b).

3. The wording of the tribunal's decision was not an evaluative finding, supported by reasons, that the explanation failed the statutory test. It was a mistaken finding that no explanation at all had been given. Alternatively, the judgment did not show that the explanation had been considered. If it had been rejected as inadequate, the judgment gave no reasons sufficient to show why. Those were errors of law. The reasonable-practicability question remained one for the tribunal of fact, applying the practical approach in [1979] ICR 52.

4. Ground 2 failed. On the tribunal's unchallenged findings, the claimant's words, conduct, return of property and refusal to work or communicate further entitled it to find that she resigned with immediate effect on 18 April 2023. The employer's invitation to communicate by 21 April permitted the parties to agree a withdrawal of that resignation; it did not mean that termination occurred retrospectively on 21 April.

5. There was no statutory basis for treating an otherwise immediate termination as a termination on notice merely because it was not expressly described as summary. Any entitlement to notice pay did not alter the effective date of termination.

6. The case was remitted, if possible to Employment Judge Langridge, solely to determine reasonable practicability under section 111(2)(b). No further evidence was required. The effective date of termination remained 18 April 2023.

• Employment Appeal Tribunal: Allowed the appeal on the reasonable-practicability issue, dismissed the challenge to the effective date of termination, and remitted the former issue.
• Employment Tribunal: Employment Judge Langridge, judgment dated 14 December 2023, dismissed the second claim for unfair dismissal and notice pay as out of time.