| Employment Law Update November 2009 |
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Following abolition of the Statutory Disciplinary Procedures earlier this year the old three month limitation period for an employee to bring unfair dismissal procedures is back, and a claim must be usually brought within three months of the Employee’s date of termination (‘EDT’)
Timescales to bring unfair dismissal Claims But when is the EDT? • Summary dismissal – when the employee is told by the employer (or reads a letter sent by him) – in such case a letter should be sent by recorded delivery • Dismissal on notice – the termination date in the notice. Can it be extended? Yes, in limited cases such as:- • The employee reasonably believes that the employer was following a disciplinary or dismissal process that was still ongoing on the day the normal three month time limit expired. • The employee is taking part in official industrial action, and others dismissed have been re-engaged • The employee was locked out by the employer, and others dismissed have been re-employed. • Where it was not reasonably practical for the employee to bring the proceedings (difficult to show in practice) What if the claim form is lost in the post or arrives late? • The employee probably loses the claim. A complainant should always check the claim has been received. It is dangerous to file a claim form at the last minute. In one case a claim filed by email arrived 88 seconds too late! It was dismissed. A postal strike may however be a good reason for obtaining an extension if it would have arrived in the normal course of post. First class post, by the way, is usually deemed to take 2 days to arrive – not one. What about redundancy claims? The position remains the same – claims must be made for a statutory redundancy payment within 6 months of the E.D.T (although it can be extended if just and equitable). Claims for contractual redundancy payments however must be made within 3 months of the E.D.T in the Employment Tribunal. However it may be possible to bring a contractual claim in the County Court - where there is a six year time limit. The procedures are however entirely different. In some cases employees may allege that the redundancy criteria has been unfair. This will be classified as an unfair dismissal claim and the timescale for unfair dismissal claims will apply.
The High Court has recently held that employees default retirement age of 65 is lawful, despite age discrimination arguments. The determination however only affects employees. Partners in a firm or directors of a company are not affected by this determination; in these cases the firm or company needs to justify the requirement to retire. Increase in the maximum weeks pay claimable for The maximum sums claimable for weekly pay under unfair dismissal basic awards / statutory redundancy claims have risen from the 1st October 2009 from £350 to £380. Annual Leave and Sickness A September 2009 case suggests that workers who fall sick on holiday should be allowed to reschedule their leave, even if this means taking leave in the next leave year. It may however be that under the Working Time Regulations only a maximum of 8 days can be so carried forward: (Peresa v. Madrid Movilidad). This follows an earlier case where the European Courts ruled that workers who fall sick can retake their holidays. Richard March |
