When I first began reading employment cases systematically what struck me was how many decisions seemed plainly unjust (and how often the injustice bore down on the claimant’s side). After some years of practising in employment law, I focus less on the fact of assymetries of the law but try harder to explain them. After all, if it’s my client, I don’t want them to lose. And just saying “Judges are biased against claimants” is neither true nor helpful from the perspective of actually getting my clients to win.
A recent case in the Employment Appeal Tribunal Horwood v Lincolnshire County Council concerns an employee who wrote to her employer on 27 January resigning with immediate effect. The employer wrote back saying that it would not treat her resignation as immediately effective but would keep her on its books until 2 February, and the employer paid her until 2 February. Three months later, the employee brought a claim for constructive dismissal. She issued her claim within the 3 month time limit of 2 February, but more than 3 months after 27 January. The employer defended the case primarily on the basis that the claim was out of time: the employee had erred in relying on the employer’s assurance.
The original Tribunal found that in law a resignation is effective upon receipt. In law, an employer has no power to defer an immediate resignation. Therefore the employer’s argument that the case was out of time succeeded. The EAT then refused the claimant’s appeal, on essentially the same reasoning. It said that between 27 January and 2 February, the claimant was not an employee, she was an ex-employee, and the employer’s payment to her was not wages.
This is clearly an extremely unattractive decision. You would need to be a lawyer of some sophistication to know that an employer may not extend a resignation period. Certainly this employer did not know that. And it is on the face of it surprising (if not worse: the EAT describes its own decision as “unfortunate”) that this employee was penalised for the employer’s mistake.
But reflecting on the judgment more deeply, my best explanation is that the judgment reflects a view of the court that lawyers should advise their clients properly, and that the real fault here was that of the claimant’s solicitor who allowed the claim to drag on and did not submit until the last possible day.
From the point of view of a claimant, a three month time limit is impossibly short. But from the point of view of the court it is generously long. Really, any decent lawyer, with a client in front of them, ought to be able to draft a claim form and submit it within a couple of hours of meeting them. Why did the lawyer let the case go until the 24th hour? If she had taken a conservative view and submitted the claim a week early, her client would not have lost.
From the point of view of the court, it doesn’t help that lawyers often leave things to the last minute: it has the result that claims are rushed and harder to understand. Delaying does not improve justice but leads to “satellite” litigation of this sort, which ends up being about side rather than main issues.
The theme of this judgment, in other words, is that from the point of view of the court, it is better for people to get on with it. There are three sides to an ET decision, the two parties, and the court. Sometimes, the court will do what is in its – not the parties’ – interests.