Redundancy pay claim not brought in time, EAT holds

The Employment Appeal Tribunal (EAT) has assessed if a claim for redundancy pay was in time when considering conflicting evidence of the termination date.

The claimant in Avuru v Favermead Ltd & Nasser worked for the respondent as a carer for a period of ten years, caring for the sick mother-in-law of a director, Mrs Easton. Following the death of Mrs Easton in March 2017, the claimant’s work ceased; however, the respondents did not directly inform her that her employment was to end. This was despite the fact that she was offered no further work as a carer.

Although the respondent would later argue that the claimant was sent a P45, she disputed ever receiving it. What was certain was that the claimant stopped receiving any pay for her role as a carer in April 2017. In November 2017, a conversation was finally held between the claimant and the respondent concerning her ongoing employment, with the respondent confirming that they were ‘finished with her’. In January 2019, that the claimant brought claims to the Employment Tribunal (ET) surrounding this issue. The respondent countered this argument by stating that she had brought her claims out of time.

Before it could assess whether the claimant had submitted her claim for unpaid redundancy pay in time, the ET first had to determine her actual date of termination. This threw up a number of issues; although the respondent argued that this date should be March 2017, following the death of Mrs Easton, the claimant asserted that this should actually be November 2017.

She alleged that she’d had a conversation with the respondent not long after the death of Mrs Easton, in which she had been told to take some rest for a few months. Her argument was that this led her to believe that her employment was to continue until she was finally told otherwise by the respondent in November 2017. Despite the fact that the respondent disputed this conversation ever taking place, and that the ET agreed that all evidence pointed to the termination date being in March 2017, it was found that the termination date was actually November 2017. This was because the claimant maintained subjective belief about her employment until this date. The ET went on to explain that regardless of the termination date being November 2017, the claim had still been brought out of time.

Both the claimant and the respondent took issue with the ET’s ruling and appealed.

The EAT agreed that the claim was out of time and therefore could not proceed. However, they were critical of the ET’s ruling. They held that as the ET had concluded that all evidence pointed towards the termination date being March 2017, their natural conclusion should have been to find this as the termination date. However, they seemed to have relied on evidence from the claimant that conflicted with the respondent. As the ET had not outlined why the claimant’s evidence was more reliable, their conclusion could not be upheld.

Suggested Resources