Timing Issue

[SweetLorraine]

Hello,

 

quick query (for a friend). She submitted an ET about a disciplinary process - but very close to the three month deadline! The respondent has replied, insisting that her claim is out of time (by two days) based on the date (i.e. when it was typed up) of the letter she was sent (second class) informing her of the company's decision.

 

However she is countering (as would I) that she is within the time limits (by a couple of days) based on the date she received the letter informing her of the company's final decision on the disciplinary matter. (She can prove the date of receipt of the letter).

 

Could anyone advise which would the more acceptable argument/position to the Tribunal - the claimant's or the respondent's position?

 

Any help would be wonderful. Regards, SL.

[becky2585]

Hello

 

What is being claimed and what was the disciplinary matter?

[SweetLorraine]

Hi becky2585,

 

it is a protected disclosure claim and she was disciplined for not following the company's procedures.

[becky2585]

So is it a detriment claim under the Public Interest Disclosure Act based on the one detriment?

Edited February 18, 2013 by becky2585

[ericsbrother]

Obviously the employer will try that one on, just run with it and you will know. Personally I think the Tribunal will let it progress in the interests of justice. The employer will then have to go to the High Court to have the case struck out and that isnt cheap or guaranteed. Accept it as part of their opening position and carry on with your side of things.

[becky2585]

Obviously the employer will try that one on, just run with it and you will know. Personally I think the Tribunal will let it progress in the interests of justice. The employer will then have to go to the High Court to have the case struck out and that isnt cheap or guaranteed. Accept it as part of their opening position and carry on with your side of things.

 

That's not strictly accurate.

 

The Tribunal will only accept a late claim if it was not "reasonably practicable" to bring it in time - the interests of justice does not apply. Additionally, any appeal would be made to the Employment Appeal Tribunal, not the High Court, and must be on a point of law.

 

OP - I think we need a little more info to advise fully!

[SweetLorraine]

I'II ask!

[Pusillanimous]

Sweet Lorraine it is not necessarily a late claim. You can argue it should be based on date of receipt of the letter, if sent by post, not on the date it was typed up. There is case law on this. However, the onus will be on your pal to prove she got it the date she did. If it was sent second class and she got it two days later from the date of the letter, that sounds perfectly credible. In the case law, the person was able to prove she was away on holiday when her dismissal should have been received by her by post, so the deadline was backdated accordingly.

 

If they did not send it by recorded delivery, they will have difficulty proving that the date sent is what they claim it to be. In fact, they might have sent it late on purpose!

[mariefab]

If she was told about the decision/detriment on the day that the letter was typed, the Respondent is likely to be right.

If she knew nothing about the detriment until she received the final decision letter, the claim is in time.

[SweetLorraine]

Oh dear,

 

she was actually representing herself at a PHR yesterday! They struck out her case. The judge reasoned that it was the date the company made the decision that counted - not when she later found out about it by letter. Deemed to be a misconceived claim based on timing. Costs allocated as well. Very upset.

[mariefab]

So, she knew about the company's decision before she received the letter?

[SweetLorraine]

Hi mariefab,

 

No, no idea until she received the letter!

 

(I'II encourage her to join up here!)

Edited February 19, 2013 by SweetLorraine

[SweetLorraine]

Sweet Lorraine it is not necessarily a late claim. You can argue it should be based on date of receipt of the letter, if sent by post, not on the date it was typed up. There is case law on this. However, the onus will be on your pal to prove she got it the date she did. If it was sent second class and she got it two days later from the date of the letter, that sounds perfectly credible. In the case law, the person was able to prove she was away on holiday when her dismissal should have been received by her by post, so the deadline was backdated accordingly.

 

If they did not send it by recorded delivery, they will have difficulty proving that the date sent is what they claim it to be. In fact, they might have sent it late on purpose!

 

Hi Pusillanimous, thanks very much for the advice.

 

Is there a website where we can check out some examples of this case law? Any examples from anyone would be great.

Edited February 20, 2013 by SweetLorraine

[becky2585]

I suspect the point the judge made here was that the detriment occurred when the decision was made, rather than communicated to her.

 

If they'd not communicated the decision for three months, that would be different as it clearly couldn't have been brought in time, and there would be a good not reasonably practicable argument.

 

Here it seems to just be a confusion over time limits, which the judge obviously didn't find credible.

 

Why did she issue the claim so close to three months?

[mariefab]

As Becky said earlier, more information is needed.

In particular, what was the detriment and when did it happen.

 

If the detriment complained of is that she was subjected to a disciplinary process, I would expect that the relevant date would be the date of the the disciplinary hearing. In which case the claim would not have been submitted in time.

 

However, if the detriment was something that she was informed of for the first time in the final decision letter (e.g. a written warning, demotion etc.) the 3 month deadline would start from the date of receipt of the letter. So, the claim would be in time.

 

Most of the case law about claims in, or out, of time relates to establishing the effective date of dismissal for unfair dismissal claims.

But the same principles apply in other cases, like this one, because they have the same 3 month deadline.

Here's an example:

 

http://www.bailii.org/uk/cases/UKSC/2010/41.html

[SharonB123]

Hello everyone, I registered.

 

thanks for your advice so far.

 

I had a number of problems at work. I reported one manager about his irregular business practices in work and I was disciplined (written warning) for not reporting it to the right (nominated) manager (Finance Director) in the company. I didn't feel this was right and I used the company's grievance procedures to say so. They stuck together at the company grievance hearing and the warning was not withdrawn. I then appealed that decision. The appeal hearing was quite friendly and I hoped they would withdraw the warning. I got the appeal result/letter a week later. The warning was not withdrawn and I was very upset.

 

I put in a ET claim under making a disclosure and I complained about the way my grievance was dealt with. It has progressed along then we had a hearing review (a few days ago). It was struck out because my claim to the ET went in slightly more than three months after the decision letter was dated. The first I knew about the decision was when I got the letter in the post a week later. My claim was in within the three month period for that date.

 

I knew I had three months to lodge a claim. I didn't think it mattered whether you do it on day one or the last day possible - it is three months. I have a heavy workload and a family - life and work take up a lot of time. I also took great care in what I said in the ET1 form (names -what they did etc) - so I took lots of time to draft the form. I also had to think about the consequences of putting in a claim - I would be even less popular at work (I'm off sick at the moment).

 

The hearing review said I was out of time - they worked off the date on the letter. But I didn't know what the decision was until the day it came in the post. I thought injury to feelings was all part of the equation for the claim. Well I was very upset when I read the appeal decision that day and for some time afterwards. Doesn't that count for anything?

 

They kept saying the 'act' was the letter being typed. I thought it was the whole of the grievance appeal process - the appeal process (hearing, decision, informed the complainant) is the 'act' surely, not one little bit of it like typing up a letter. If you want to be silly you could say the 'act' was when the decision formed in the manager's head. What happened then if he changes his mind? Which 'act' do we stick too then? Am I meant to be a flipping mindreader? Surely it is when I find out the decision. I wish I had thought of all this at the hearing review - I went by myself and it was all a bit too quick and the opposition were quite aggressive. At the end I had to pay some of their costs as well. Very upset at the moment.

 

I hope that is OK info. wise. Is it worth appealing do you think?

[mariefab]

So, there was a disciplinary hearing because they said that you made a protected disclosure to the wrong manager.

 

Did they indicate at that disciplinary meeting that you would receive a written warning?

Did anyone inform you that you would be receiving a written warning between the disciplinary date and the date that you received the letter stating that their decision was that a written warning would be issued?

On what date did you receive the decision letter saying that you would have a written warning?

What did the written warning say?

On what date did you submit your ET1?

[becky2585]

So, there was a disciplinary hearing because they said that you made a protected disclosure to the wrong manager.

 

Did they indicate at that disciplinary meeting that you would receive a written warning?

Did anyone inform you that you would be receiving a written warning between the disciplinary date and the date that you received the letter stating that their decision was that a written warning would be issued?

On what date did you receive the decision letter saying that you would have a written warning?

What did the written warning say?

On what date did you submit your ET1?

 

Marie, I have a sneaking suspicion the answer to those questions will be academic. My thinking, which is basically just legal rambling as I'm not aware of case law in the area, is that the employer has to conduct an act capable of being a detriment. That act occurred when the decision was made and when they communicated it by letter. Receipt of the letter therefore may not be capable of being a detriment as it occurred two days previously.

 

Obviously there's then a direct contrast in the law when it comes to a dismissal. I suspect the reason is that notice has to run in full days as the law doesn't recognise half days - it runs from the next complete day, if you see what I mean. That's not the case with whistle blowing or discrimination.

 

I will probably have a nosy around and see if I can find any case law to support the poster as its an interesting point!

[Pusillanimous]

Hi Pusillanimous, thanks very much for the advice.

 

Is there a website where we can check out some examples of this case law? Any examples from anyone would be great.

 

I saw it on the EAT judgments database. I think it has become standard case law, as timing has always caused contoversy, so it might come up on a search engine such as google if you type in key words.

 

If she only found out when she got the letter, the PHR decision seems harsh, if it was only a day out and she thought she had a further day.

 

It is worth appealing.

[mariefab]

Although I couldn't find a case exactly on point; after looking at a lot of related case law I'm afraid that it isn't worth appealing after all.

It turns out that the relevant date is the date of the act by the employer which in this case is the date that they made the decision, (as becky correctly said) which was proven by the fact that it was typed up.

Not the date that the employee learns of the act (or the date of the detriment, which is what I incorrectly assumed).

 

The relevant sections of the Employment Rights Act 1996 are:

47B(1) A worker has the right not to be subjected to any detriment by any act ..... by his employer done on the ground that the worker has made a protected disclosure.

48(3)An employment tribunal shall not consider a complaint under this section unless it is presented—

(a)before the end of the period of three months beginning with the date of the act ..... to which the complaint relates .....

 

Therefore, the ET1 needed to be submitted within 3 months of the 'act'.

 

It's an interesting difference. I wonder how many people get caught out by not knowing that they need to establish the date that a decision was made.