REWARD
C laim delays C ontext C onstructive unfair dismissals
Nicola Mullineux, senior employment specialist for Peninsula, explores the interesting outcomes of three different recent employment law cases
Reason for four-year delay in submitting tribunal claim not sufficient for extension The employment tribunal (ET) had to consider whether the time limit for submitting a tribunal claim should be extended in the case of Mr S W Kibrom v Uber London Limited. The time limit for bringing a claim depends upon the type of claim. For most, it’s three months minus one day, but for some, it’s six months minus one day. When the time limit starts also depends upon the type of claim, so, it could start from the effective date of termination, the date when the employee was last paid or the last act of discrimination. In this case, the claimant submitted claims of: l unfair dismissal l failure to pay accrued holiday pay l unauthorised deductions from wages. However, there was a gap of around four years from when they stopped working as an Uber driver to when they first contacted the Advisory, Conciliation and Arbitration Service, seeking early conciliation. If the claimant’s employment ceased at the end of May 2019, the time limit would have expired at the end of August 2019, so these claims were issued outside of the statutory time period. An ET can exercise its discretion and allow an extension of the time limit if it is just and equitable to do so. The onus is on the claimant in such situations to prove to the ET that presenting their claim in time was not reasonably practicable.
The claimant stated that the reasons for the delay were as follows: l they were only given the reason for the termination of engagement over the telephone, and they weren’t able to appeal l they were unemployed for a period of eight months until 2020, at which point they obtained other employment l they say that the law about the status of Uber drivers was uncertain l they first became aware they might have a claim when they were approached by a firm of solicitors representing Uber drivers in 2023. “An employment tribunal can exercise its discretion and allow an extension of the time limit if it is just and equitable to do so” The ET had to, therefore, consider whether time should be extended to allow the claims to proceed. The ET found that the claimant ought to have known of the potential to bring a claim when their time as an Uber driver was terminated. This was because the claimant was dissatisfied with the way in which they were treated. And so, the ET stated that they ought to have considered whether tribunal proceedings could be brought at that point, or they could have at least taken
steps to understand their rights. The ET found that it was reasonably practicable for the claimant to have issued proceedings within three months and ignorance of their legal rights wasn’t reasonable. The claims were, therefore, dismissed, as the ET had no jurisdiction to consider them. Context is a key consideration prior to dismissing an employee for the use of an offensive word Whether dismissing an employee for using an offensive word was fair was the question the ET had to consider in Borg-Neal v Lloyds Banking Group. During a race education training session, while the trainer was discussing intent v effect, the claimant asked how they should deal with a hypothetical situation – what if the claimant, a white male, heard someone from an ethnic minority use a word that could be considered offensive if used by another, not of that minority. The specific example they gave was the use of the ‘N’ word by the black community. In the session, they used the full word. Following the training session, such was the impact on the trainer that they felt they had to take a week off work. The claimant explained they had been told the session was a safe space, and that their question was asked to further their understanding, not to cause offence. Although it was accepted that the claimant hadn’t intended to cause any hurt and the comment was made without malice, it was held that they should have known better.
| Professional in Payroll, Pensions and Reward | April 2024 | Issue 99 34
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