Mr Besmir Pepkolaj v Barrett Steel Ltd — 2023

This was a preliminary issue hearing on limitation only, not a merits hearing. Mr Besmir Pepkolaj had been dismissed by Barrett Steel Limited on ill-health capability after a long absence following a workplace wrist injury and surgery. The dismissal letter said the termination took effect immediately, referred to one month’s pay in lieu of notice and accrued holiday, and gave a right of appeal. The appeal was heard on 4 November 2022 and was dismissed by letter dated 8 November 2022, but the tribunal found the effective date of dismissal was 29 September 2022, the date stated in the dismissal documents and recorded in the meeting notes.

The claimant had entered 8 November 2022 as the dismissal date on the claim form and believed the appeal outcome letter marked the end of employment. The tribunal accepted that Mr Pepkolaj and his partner genuinely held that view, but found that they had assumed, rather than checked, that the three-month tribunal time limit only started after the internal appeal. The tribunal found there was no defective advice from the employer; the claimant had not consulted the employer’s employment solicitors about a tribunal claim, and only later obtained Citizens Advice after the limitation period had already run.

Applying section 111(2) Employment Rights Act 1996 and the extension for early conciliation under section 207B ERA 1996, the tribunal held that it was not satisfied that it had been not reasonably practicable to present the claim in time. It relied in particular on Dedman, Porter, Trevelyans, and Sodexo Health Care Services Ltd v Harmer. The tribunal distinguished ignorance from a reasonable inability to act, and held that a claimant who knows of the right to complain is generally expected to make enquiries about the time limit. Because ACAS was not contacted until 16 January 2023, more than three months after the actual dismissal date, and the claim was presented on 6 February 2023, the claim was out of time and was dismissed.