Mrs Andrea Watson v Represented by Ms C Thomas Solicitor Dumfries & Galloway Council — 2021

This was an open preliminary hearing on 11 August 2021 concerning whether Mrs Andrea Watson's single unfair dismissal claim had been presented in time. The claimant had been employed by Dumfries & Galloway Council for about 22 years and was dismissed summarily on 22 April 2020, with the dismissal confirmed by letter dated 24 April 2020. The tribunal found that she had trade union support throughout the disciplinary process and that she believed, following advice from Mr McGroggan, that her claim had been lodged with ACAS in time.

The tribunal accepted the claimant's evidence as credible and reliable. It found that by 29 April 2020 she knew of the right to claim unfair dismissal, the need to start early conciliation before lodging a tribunal claim, and the three-month less one day time limit. It also found that she relied on her trade union representative to have started early conciliation, and that this had not in fact been done by 21 July 2020. Early conciliation only began at her own behest on 2 October 2020, and the ET1 was presented on 16 December 2020.

Applying section 111(2) of the Employment Rights Act 1996, the tribunal held that it was reasonably practicable to have presented the claim in time. It treated the failure of the trade union representative, who had undertaken to act for the claimant, as the claimant's failure, relying on the approach in London Borough of Islington v Brown and the guidance discussed in Williams-Ryan. The tribunal also noted that section 207B of the Employment Rights Act 1996 did not apply because early conciliation had not been triggered timeously.

The tribunal added that, strictly speaking, it did not need to decide whether the ET1 had been presented within a reasonable further period, but it considered that once the claimant had found out that the certificate had not been issued to her, the ET1 was presented within a reasonable time. That did not alter the outcome, because the claim was still out of time. The judgment therefore dismissed the unfair dismissal claim for want of jurisdiction.