Mr R MacKenzie v Represented by:- Mr John Black – Lay Representative Hoyer Petrolog UK Ltd — 2018

The claimant, Mr R MacKenzie, had been employed by the respondent since 1 April 2000. He was invited to a disciplinary hearing by letter dated 10 April 2018, but did not attend because he was medically unfit. His union representative, Mr Charles Davidson, attended on his behalf. The preliminary hearing concerned whether the unfair dismissal complaint and the protected disclosure complaint were in time.

The Tribunal preferred Mr Davidson's evidence that he told the claimant on 19 April 2018 that he had been dismissed with immediate effect, rather than the claimant's recollection that he had only been told that he was likely to be sacked. The Tribunal relied in particular on the claimant's email of 3 May 2018, in which he referred to not yet having received communication of his dismissal, which he described as having apparently happened on 19 April. It held that the letter dated 4 May 2018, received around 11 May 2018, was confirmation of a decision already communicated orally.

The Tribunal distinguished Gisda Cyf and Haywood, and preferred the respondent's reliance on Robinson v Bowskill on the point that communication of the outcome to a union representative did not affect the effective date of termination. On that basis, the effective date of termination was 19 April 2018 and the ET1 presented on 30 July 2018 was outside the three-month limit. The same conclusion applied to the protected disclosure complaint under s.48(3) ERA 1996.

The Tribunal also found that it was reasonably practicable to present the complaint in time. It noted that the claimant had union assistance, received an email on 16 May 2018 setting out time limits, was able to use a computer, and gave no explanation for the gap after the ACAS certificate dated 20 July 2018 before the ET1 was submitted on 30 July 2018. The Tribunal therefore held that it had no jurisdiction to hear the complaint and dismissed it.