Veteran worker’s claim almost shut out

Posted: 26th November 2013

EATAn administrator worked at the same doctors’ surgery for more than 40 years – but came within a whisker of having her disability discrimination claim dismissed after it was filed two days late.

The veteran employee had been signed off work with depression after learning that she was to face a disciplinary hearing. Due to her ill-health, her solicitor had asked the surgery to communicate with her client through her. The woman was ultimately dismissed following a disciplinary hearing held in her absence.

The surgery had communicated the dismissal decision to the woman’s solicitor on the day that it was made. However, she was not told the bad news by her solicitor until the following day and did not receive a formal notification letter from her employers until the day after that.

An Employment Tribunal (ET) found that the effective date of the woman’s dismissal was the day on which her solicitor had informed her that she had lost her job. That ruling resulted in both her claims of unfair dismissal and disability discrimination being summarily dismissed on the basis that they had been lodged outside the three-month statutory time limit.

On appeal, the EAT found that there was no error of law in the ET’s conclusion as to the effective date on which her contract was terminated. Her unfair dismissal claim had therefore been lodged outside the primary limitation period and the ET had been entitled to dismiss that part of her case.

However, the ET had not considered whether the failure to present the woman’s discrimination claim in time was due to her solicitor’s delay rather than to any fault on her own part. On the basis that errors made by legal advisers should not be visited upon their clients, the EAT found that this was ‘one of those rare cases’ where the time limit should be extended.

Noting that the surgery had suffered no prejudice as a result of the brief delay and that all other relevant factors were in the woman’s favour, the EAT found it just and equitable to exercise its own discretion and allow her disability discrimination claim to proceed to a full hearing.