Mr E Brown, trade union representative v Mr R Scuplak, consultant — 2022

Ms Mabrouk had been employed by New College Leicester since 25 August 2016 as a Teacher of Modern Foreign Languages. After a Stage Three Absence Management Hearing on 26 March 2021 she was dismissed, and the respondent’s 1 April 2021 letter said notice would run to 31 August 2021 with a reservation of the right to pay in lieu. The appeal was unsuccessful, and on 5 May 2021 the respondent invoked that right and stated that the effective date of termination would be 31 May 2021. The claimant collected her belongings on 18 May 2021 and received payment in lieu on 27 May 2021. She had also made a flexible working request on 22 March 2021 asking to reduce her hours from five days to four, but there was no evidence of a formal outcome before the hearing.

For unfair dismissal, Employment Judge Ayre held that the effective date of termination was 31 May 2021, treating the 5 May 2021 email as unambiguous notice bringing the termination date forward. The tribunal rejected the argument that the contractual notice provisions or Burgundy Book terms prevented that conclusion, and noted that the effective date of termination is a statutory concept. Applying the section 111 ERA 1996 time limit, the primary period expired on 30 August 2021. Because early conciliation did not start until 8 November 2021 and the claimant was represented throughout by the NASUWT, the tribunal found it would have been reasonably practicable to present the claim in time and held that it had no jurisdiction to hear the unfair dismissal complaint.

The flexible working complaint under section 80H ERA 1996 was also held out of time. The tribunal found that the decision period expired three months after the request was made, so the relevant date was 21 June 2021 and the primary time limit expired on 20 September 2021. Early conciliation again began only on 8 November 2021 and the claim was presented on 16 December 2021. No evidence was given explaining the delay, and the claimant’s representation by the NASUWT meant it would have been reasonably practicable to bring the claim in time. The tribunal therefore concluded that it lacked jurisdiction over the section 80H complaint.

For the discrimination claims, the tribunal took the claimant’s case at its highest and assumed, for limitation purposes only, that the alleged discriminatory conduct continued until the termination date of 31 May 2021. Even on that basis, the claims were at least three and a half months late when early conciliation started and the claim form was presented. The tribunal found no evidence or argument justifying an extension of time under section 123 Equality Act 2010, noted that the claimant knew the facts giving rise to the claims before her employment ended and had professional advice at the time, and held that it was not just and equitable to extend time. All of the discrimination claims were therefore out of time and outside the tribunal’s jurisdiction.