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Nine-second delay sinks unfair dismissal claim

Electronic transfer delay blamed

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A case of unfair dismissal was not heard by an Employment Tribunal because the application was received nine seconds too late. The late submission was made by a law student charging £120 per hour.

The case was dismissed by the Employment Tribunal and the Employment Appeals Tribunal (EAT) and details of the then-student's activity sent to the Justice Minister in his role as the Regulator of Regulated Claims Management Service.

A man called D Miller took a case against Community Links Trust Limited for unfair dismissal, which the tribunal refused to hear because the claim was submitted nine seconds late. In that case, a J Neckles was described as Miller's "legal representative" in the proceedings.

The EAT found that the original tribunal was correct in deeming the claim for unfair dismissal invalid because more than three months less a day had passed since the dismissal of the employee.

"The tribunal decided that the claimant was dismissed on 30 June 2006 and thus the time for presenting his claim for unfair dismissal expired on 29 September 2006," said the EAT ruling. "Since there is an electronic method of presentation anything occurring on 29 September 2006 would be in time, anything on 30 September 2006 is out of time."

The claim was sent by Neckles at one minute to midnight, but did not reach the servers of the Employment Tribunal until eight seconds after midnight.

The website of the tribunals warns users that there will be a delay between their electronic sending of items and their receipt by the tribunals service. A user is prevented from continuing unless they accept that this is the case.

"Mr Neckles gave evidence on four matters making it not reasonably practicable for the claim to be presented," said the EAT ruling. "These concerned whether he had notice of the above disclaimer, had an untreated medical condition, had prepared the claim form from scratch at a 30 wpm typing speed and, when the claim form was submitted, had received an acknowledgment within time... on each of which, his account was examined, deconstructed and rejected."

The EAT upheld the decision that the claim was made too late. It has some discretion when there are circumstances that would have prevented the claim from being submitted on time.

"The tribunal held that it was reasonably practicable for the claim form to have been submitted in time," said its ruling. "It criticised Mr Neckles for, even on his own case, which it had rejected, if he had a medical condition making it difficult for him to keep deadlines he should have proper systems in place once the claimant had put him in charge of the case."

"The tribunal found that both the claimant and Mr Neckles were fully aware of the deadline and it rejected the evidence presented by Mr Neckles and therefore the contention that it was not reasonably practicable," said the ruling. "This was a careful judgment of a very experienced three person tribunal. It has justified each of the four findings against Mr Neckles, which it made quite properly in the context of looking at where fault lay as well as other facts. The appeal is dismissed."

The EAT said Neckles was operating on behalf of Miller outside of the Compensation Act, which governs who can provide advice to people who are making claims.

"Mr Neckles, recently graduated in law at the time of the Employment Tribunal hearing appears not to fall within the Regulations," said the ruling. "Before the statutory regime was in place, when he made the out of time claim, he was a second year law student subsidising his education by making half a dozen claims and charging £120 per hour. He was at fault as the claim was not put in on time."

The EAT warns that someone providing unauthorised services may be imprisoned for two years. The Tribunal said it would refer the matter to Justice Minister Jack Straw "in the light of our concerns".

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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