Employment contract: Terms on their own could have confused claimant
A team manager whose unfair dismissal and breach of contract claim against Yorkshire law firm Minster Law was time barred has blamed his solicitors for issuing it too late.
Employment Judge McAvoy-Newns in Leeds said that, if Mr M Gillard’s evidence was correct, then the advice he was given by his solicitors was incorrect.
The hearing was held to determine whether the effective date of termination (EDT) of his employment was 16 December or 22 December last year – if the latter, then the claim would have been brought four days late. He had worked for Minster Law for nearly 19 years.
His position was that his employment terminated on 22 December, when he received his dismissal letter – his employment contract stated that notice must always be given in writing.
However, Minster Law argued that it terminated on 16 December, when Mr Gillard was informed that he was being dismissed immediately.
The dismissal letter confirmed that “you have been procedurally dismissed from your role as team manager following your final written warning issued on 12th November 2020 and your employment has been terminated with immediate effect”.
Mr Gillard said his unnamed solicitors were advising him from early November 2021 and they had drafted and lodged his claim. He said they had confirmed that his EDT was 22 December because his contract said notice needed to be in writing.
Although he did not recall a specific conversation with them about time limits, he said: “I would expect them to deal with it within the prescribed time limits. They advised when the case needs to be issued.”
But the judge held that Mr Gillard “was aware that his employment was terminating immediately during the meeting on 16 December” and noted that his pay stopped on the same day.
This meant the time limit was missed and Judge McAvoy-Newns went on to refuse to exercise the discretion that allowed him to extend time where it had not been reasonably practicable to present the claim by the deadline.
While, on their own, the termination letter and the contract “could have reasonably confused” Mr Gillard, the rest of the circumstances showed he was not misled. These included having “access to legal advice from skilled advisers”.
The judge added: “It appears that, at some point, the claimant’s advisers may have advised him that his EDT was 22 December 2021 because that was when written notice was given to terminate employment. I cannot say whether this advice was given and/or when because I have not seen such advice. I have only heard evidence from the claimant about this point…
“However, I can say that, if this advice was given, based on my conclusions regarding the EDT, that advice was incorrect.”
If this was the case, then the fault was attributed to the claimant, meaning it had been reasonably practicable for Mr Gillard to present his claims in time. The judge refused to exercise his discretion and instead dismissed the claims.
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