Court of Appeal holds that an ambiguous dismissal letter to dyslexic employee may be enough to extend the limitation period for bringing a claim - Lowri Beck Services Ltd v Brophy

The Court of Appeal held that a misunderstood termination date may justify an extension to the limitation period for bringing a claim and highlights the importance of clear dismissal letters.

Facts

In this case, the employee had dyslexia and was dismissed by the employer for gross misconduct by telephone on the 29 June. On the 6 July, he received a letter confirming his dismissal which was dated 4 July and stated "Further to the disciplinary hearing held on Wednesday, 21 June 2017 and our telephone conversation on Thursday, 29 June 2017, I am writing to inform you of my decision. I have no option but to dismiss you for gross misconduct. This dismissal will be with immediate effect from 29 June 2017”.

Due to his disability, the employee relied on his brother for assistance, who commenced employment tribunal (‘ET’) proceedings on the basis that the termination date was early July, rather than late June. Consequently, the ET held that the employee’s claims for unfair and wrongful dismissal and disability discrimination were lodged out of time. It decided however to allow the extension of time. Reasons included that the employee was vulnerable with dyslexia and relied on his brother’s assistance, the dismissal letter being unclear and contradictory, stating the employer was writing to inform of the dismissal and later stating the actual termination date and as a result of the employee’s difficulty in processing important information under stress. The Employment Appeals Tribunal agreed with this decision and the employer appealed to the Court of Appeal.

Decision

The Court of Appeal dismissed the appeal and upheld the decision of the ET. The court summarised the legal principles in this area, highlighting that for the unfair and wrongful dismissal claims a claim must be brought within 3 months of the effective date of termination. This could be extended where it was not reasonably practicable to present the claim within the primary time limit and the claim was presented within such further period as the tribunal considered reasonable. The case law on this has further established that this test should be given a liberal interpretation in favour of the employee, it should not be taken as only referring to physical impracticability, the question is a question of fact, not law and if a time limit is missed due to ignorance, the question is whether that mistake is reasonable. In assessing reasonableness, it will be necessary to consider any enquiries that should have been made.   

For discrimination claims, a claim must be brought within 3 months of the date of the act complained of, or such as other period that the tribunal thinks is just and equitable. The court further highlighted the very wide discretion available under the Equality Act to the tribunal to extend time for discrimination claims.

It rejected the argument of the employer that it was not reasonable for the employee to treat the letter dated 4 July as effecting his dismissal, holding that ‘he terms of the letter were on any reasonable view at least ambiguous’. On the question of whether the mistake was reasonable, the tribunal had correctly, applied a factual assessment and a liberal approach, concluding it was reasonable for the employee to treat his termination date as the date he received the letter communicating this especially after being told on the phone he would be receiving such a letter. Overall, the court held that the ET had not made an error of law and applied the above tests correctly in granting the extension.

Implications for employers

Obviously, the decision is fact specific and the same may not be the case for an employee who is not disabled or who was legally represented, however it is an important reminder of ensuring dismissal letters are unambiguous, received as soon as possible and make the termination date very clear to the employee. It further acts as a useful summary of the principles that courts will consider when deciding to extend a limitation period for bringing a claim.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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