How Newly Obtained Information Affects Unfair Dismissal Time Limit; Manx Tribunal Rules

Where a dismissed employee gains new information relevant to a claim after dismissal it will still not be enough to permit a late Tribunal application unless the claimant satisfies a three prong test, the Isle of Man Employment Tribunal has found.

In a recent preliminary hearing dealing only with the question of whether the claimant's unfair dismissal claim form could proceed out of time, Tribunal Chair Douglas Stewart reviewed the law relevant to commencing an unfair dismissal outside the three month period set out in the Employment Act 2006 of Tynwald. Section 133(2)(a) of the Employment Act 2006 provides that the Tribunal shall not consider a complaint for unfair dismissal unless it is presented before the end of the three month period beginning with the effective date of termination. But under section 133(2)(c) a statutory gateway allows the claim to proceed within such further period as the Tribunal considers reasonable in a case where it is satisfied it was not reasonably practicable for the complaint to be presented within the three month period.

The case arose when a hotel manager lodged an unfair dismissal claim form after a summary dismissal in connection with certain accounting allegations and alleged failure to follow correct procedures. Following her dismissal the claimant contended that based on information that subsequently came to light, she learned that what she had been dismissed for was a common practice and she contended that this allowed her unfair dismissal claim to proceed notwithstanding that it was filed at the Tribunal some two weeks out of time.

Adopting the English law position set out in Machine Tool Industry Research Association v Simpson [1988] ICR 558 CA the Isle of Man Tribunal considered that where new facts underpin a request to proceed with a claim out of time the claimant must establish three things, namely that:

• The claimant's ignorance of the facts relied on was reasonable; and
• That the claimant had reasonably gained knowledge outside the time limit which the claimant reasonably and genuinely believed to be crucial to the case and to amount to grounds for an application; and
• The acquisition of the knowledge was in fact crucial to the decision to bring the claim.

In order to assess whether the claimant had met the three prong test the Tribunal heard from witnesses for both parties. After hearing the evidence the Tribunal Chairperson concluded that the claimant had not satisfied her burden of proof as to the three elements set out in the Simpson case. In particular the Tribunal commented that the claimant had known sufficiently about the practice for which she was dismissed before the termination and what she learned afterwards did not add sufficiently to make any material difference.

As to the second limb of the test, the Tribunal was satisfied that the claimant had gathered sufficient new material to support her position within the three month period and therefore found that she had ample opportunity to file her claim within the three month period.

As to the third limb of the test the Tribunal found that certain conversations the claimant had outside the three month time limit were the tipping points that encouraged her to file the claim but the Tribunal overall was satisfied that notwithstanding this she had ample reason to commence proceedings within the strict three month time limit and therefore it was reasonably feasible for her to make the claim timeously.

Accordingly the claimant's application to present the claim out of time was dismissed.

Comment

This is the latest in a series of decisions which shows that the Employment Act 2006 of Tynwald remains robust concerning the three month time limit to file a Tribunal claim for unfair dismissal. The Tribunal reiterated that the approach to the statutory test is that the claimant has the burden of proof to establish that it was not reasonably feasible to lodge the claim in time. Even though the Tribunal noted that there was no personal gain and that the claimant's motives were honourable if misguided, the Tribunal in this case applied the test strictly and found that new information potentially relevant to the claim did not allow the claim to proceed out of time. As the Tribunal Chairperson commented, it was unfortunate that the claimant did not seek advice until it was too late, a warning for all would be claimants.

Author: John T Aycock - Advocate

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