Tribunal claims usually have to be presented within three months less one day of the effective date of dismissal. In Lowri Beck Services Ltd v Brophy, the Court of Appeal held that an “unclear and contradictory” dismissal letter was a sufficient reason to extend time for a dyslexic claimant.
Basic facts
Mr Brophy, who worked as a meter operative, suffered from severe dyslexia. As a result, he relied very heavily on his brother, Michael Brophy, to help him with any official matters.
Following an incident at work in which he was said to have left a meter in a dangerous condition, he was subject to a disciplinary hearing. Although he was told at the hearing that the outcome would be communicated to him in writing, he was informed by telephone on 29 June 2017 that he was being dismissed with immediate effect for gross misconduct. He received a letter on 6 July which was dated 4 July, confirming his dismissal on 29 June.
Mr Brophy’s brother, who was not legally qualified, interpreted the letter to mean that he had been dismissed at the beginning of July. After taking advice on that basis, he started the early conciliation (EC) process on 30 September and the EC certificate was issued on 13 November. His brother lodged his tribunal claims for unfair and wrongful dismissal as well as disability discrimination on 5 December giving the effective date of termination as 4 July.
Tribunal and EAT decisions
Noting that Mr Brophy was a vulnerable individual and the letter sent to him by his employer was “unclear and contradictory”, the tribunal held that it was reasonable for his brother to treat the dismissal as having been communicated by the letter. It therefore held that time should be extended with regard to Mr Brophy’s unfair and wrongful dismissal claims. With regard to the discrimination claim, it concluded that it would be just and equitable to extend time as the company would not suffer any particular prejudice as a result of allowing the claim to proceed.
After its appeal was rejected by the EAT, the company appealed again, arguing that it was not reasonable for Mr Brophy’s brother to assume that the effective date of termination was in early July. As the letter stated that the dismissal was effective from 29 June, that should have alerted him to at least seek advice as to the correct date of dismissal. In addition, the company argued that the absence of prejudice was not the only question to be considered. Instead it should have been considered as only one element in the necessary overall assessment of justice and equity.
Decision of Court of Appeal
The Court of Appeal disagreed. Holding that the “terms of the letter were on any reasonable view at least ambiguous”, the Court concluded that it was reasonable for Mr Brophy and his brother to decide that his formal dismissal only took effect when he received the letter confirming it.
“That”, said the Court, “would be a natural understanding for lay people, reinforced by the fact that the Claimant had previously been told that he would be receiving such a letter. Of course the reference in the letter to dismissal taking effect from 29 June did muddy the waters, but it did not do so to a point where the Judge was bound to find that it was unreasonable of the Claimant and his brother not to have sought further advice."
Having determined that Mr Brophy had missed the primary time limit because of a reasonable mistake (which was in any event a factual matter for the tribunal to decide), the Court dismissed the second ground of appeal on the basis that the judge dealt expressly with prejudice because that was the only remaining factor.
Comment
This case is an important reminder of the short time limits which apply to bringing employment tribunal claims. The claimant was eventually allowed to pursue his claims in this case, but only after several years of preliminary hearings and appeals on this jurisdictional point. Trade unions and their members should take great care when assessing time limits. They should always err on the side of caution, particularly if any key dates are ambiguous.