Mrs J Scott McCluskey v Action For Children — 2022

This was an open preliminary hearing on limitation in a claim of constructive unfair dismissal brought by Mrs J Scott McCluskey against Action for Children. The claimant represented herself and the respondent was represented by a solicitor. The tribunal heard oral evidence from the claimant, considered an agreed bundle, and received additional emails after the hearing continued for further evidence.

The tribunal found that the claimant resigned by email on 9 September 2021 and that the effective date of termination was 7 October 2021, so the three-month time limit for presenting a constructive dismissal claim expired on 6 January 2022. It found that the claimant was a member of Unite, had been receiving advice and representation from the union, and knew from the union that she had three months after termination in which to start a claim. The tribunal relied in particular on the claimant's email of 23 November 2021 and the declaration she signed on 14 December 2021, both of which confirmed that time limits remained her responsibility until any claim was lodged.

The tribunal accepted that the claimant applied to Unite for member-related legal assistance on 14 December 2021, but found that Unite told her at the end of March or beginning of April 2022 that it was no longer acting for her and had not started tribunal proceedings. The claimant then sought legal advice, contacted ACAS on 20 May 2022, obtained an early conciliation certificate dated 23 May 2022, and submitted her ET1 on 9 June 2022. Applying section 111(2) of the Employment Rights Act 1996 and the approach in Marks & Spencer Plc v William-Ryan and Pora v Cape Industrial Services Ltd, the tribunal held that it was reasonably practicable for the claim to have been presented in time. The claim was therefore dismissed as out of time, and no remedy was awarded.