Can an Employee Lodge an Unfair Dismissal Claim before their Date of Dismissal?

It would very much appear that they can. In this article we explore the recent decision of the High Court in Brady –v- Employment Appeals Tribunal [2014] IEHC 302, which involved the dismissal of an employee from Bohemians Football Club, and the implications this will have for employers. Brady –v- Employment Appeals Tribunal This case concerned Mr Brady who worked for Bohemian Football Club as a bar manager from October 2008 to December 2011. On 16^th December 2011, Mr Brady was informed by the Club that he was to be made redundant and when he asked when this dismissal would take effect he was informed that it would take effect “now”. This was said notwithstanding the fact that Mr Brady was entitled to two weeks’ notice which would have meant that his date of dismissal was 31 December 2011. Unfair Dismissal Claim Mr Brady lodged an unfair dismissal claim on 23 December 2011, some 7 days after he was informed of his redundancy but some 7 days before his notice would have actually expired. The unfair dismissal claim was heard by the EAT on 03 May 2013, at which point Bohemian Football Club argued that the claim was inadmissible as Mr Brady had lodged it before his actual date of dismissal (31 December 2011). This argument was based on the wording of section 8 of the Unfair Dismissals Acts which states as follows: “A claim for [unfair dismissal] shall be initiated by giving a notice in writing… within the period of 6 months beginning on the date of the relevant dismissal…” Thus, the argument was simple: if the claim must be lodged “within the period of 6 months beginning on the date of the relevant dismissal” then Mr Brady had not complied with this as his date of dismissal was 31 December 2011 and he had not lodged a claim within the 6 month period after that date. Indeed, the EAT agreed with Bohemians Football Club and decided that Mr Brady had not met the requirements of the Acts and his claim could not go ahead. Ultimately, Mr Brady appealed this decision to the High Court. High Court In an interesting an important ruling, the High Court overturned the EAT’s decision. The High Court stressed that time limits exist to prevent tardy employees from taking claims a long time after the event. However, they equally stressed that time limits do not exist to “punish the prompt” and as such Mr Brady should not be punished for being prompt in taking his claim. The High Court went on to state that it would be “absurd” to suggest that Mr Brady had not met the requirements of section 8 above as whilst the claim was lodged before his dismissal date it did not mean that the EAT had not received notice within the 6 month period. Interestingly, the High Court were also somewhat surprised by the EAT’s approach to Mr Brady’s claim as they noted that in a different claim but with a similar scenario the EAT had held that such a claim could proceed [Matthews -v- Sandisk International Limited (UD 331/2010)] Commentary Employers should not worry that the above means an employee can lodge an unfair dismissal claim at any time they like. This decision is unique to its facts and it was a foregone conclusion that Mr Brady was to be dismissed (indeed he was informed it would take effect “now”). Indeed, the High Court stated as much when they held that “[o]f course there will be some boundary in time and some circumstances in which an ostensibly premature notice will be found in fact to have been premature and thus not duly lodged within the appropriate time-period...” The difference with Mr Brady was that he had actually been dismissed when he lodged his claim; it was simply the case that his employment had not yet ended due to his notice period. This can be contrasted with an employee going through a disciplinary or redundancy procedure where dismissal is a possibility but has not yet been confirmed; an employee in such a case would not be permitted to lodge a claim for unfair dismissal. If employers wish to discuss any aspect of the above article then please do not hesitate to contact our 24 Hour Advice Service on 01 855 50 50.