In recent judicial review proceedings, UPC Communications Ireland Ltd, now known as Virgin Media Ireland Ltd (“UPC”) sought a number of reliefs from the High Court, including a declaration that the Employment Appeals Tribunal (“EAT”) had acted outside of its jurisdiction when it decided on a preliminary basis that a claim was filed within the statutory timelines and could therefore proceed to a full hearing. The claim had been taken by a former employee under the Unfair Dismissals Acts 1997 as amended (the “UD Acts”). Section 8(2) of the UD Acts as amended provides for a maximum period of six months from the date of dismissal in which to make a claim or 12 months in exceptional circumstances.
The employee in this case, Ms Anne Marie Ryan, had been dismissed for gross misconduct by letter dated 18 October 2011. However, she was paid one month’s salary in lieu of notice.
An appeal hearing took place on 6 September 2012 following which the decision to dismiss Ms Ryan was upheld. The outcome of the appeal was communicated to her by letter dated 12 September 2012. Ms Ryan subsequently submitted a claim form to the EAT on 7 January 2013 which provided for her date of dismissal as 18 September 2012 (which was presumably the date Ms Ryan received the notice of the outcome of the appeal). A dispute then arose in relation to the date of dismissal.
UPC asserted that the date of dismissal was 18 October 2011. UPC stated that it was never indicated to Ms Ryan that her date of dismissal was on hold pending the outcome of the appeal and Ms Ryan had never indicated that she believed this to be the case. She had been issued with one month’s salary in lieu of notice and her P45 in 2011.
At the outset of the EAT hearing on 24 September 2014, UPC raised a preliminary argument that the matter was out of time. The EAT considered written submissions from both sides on this issue and concluded in February 2015 that the dismissal did not become effective until the outcome of the appeal hearing and as such the claim was within time and they had jurisdiction to hear the matter. In reaching this decision the EAT determined that UPC’s failure to deal with the appeal in an expeditious manner breached Ms Ryan’s right to justice without delay, and furthermore, that Ms Ryan’s terms of employment were unclear in relation to whether an appeal would act as a stay on dismissal which contributed to her belief that the dismissal did not take effect until the outcome of the appeal hearing.
Instead of appealing the decision of the EAT to the Circuit Court as provided for under the UD Acts, UPC sought to judicially review the decision of the EAT in the High Court. In the proceedings, UPC argued that the EAT acted outside of its jurisdiction and failed to consider the facts or relevant case law in deciding an issue of law which they said was clear. The judgment of the High Court is a useful reminder of the law in relation to the availability of judicial review.
McDermott J stated that if the EAT heard a claim that was clearly and unambiguously out of time, this would plainly exceed their authority and judicial review would be the appropriate remedy. However where it is unclear or ambiguous, having regard to the facts at issue, that a claim is out of time, the EAT was entitled to properly consider the issue. That decision could then be appealed in due course in accordance with the statutory framework provided for that purpose i.e. to the Circuit Court. The High Court, in refusing UPC’s application, held that the Tribunal had not exceeded its jurisdiction in the circumstances and had fully considered all of the facts in reaching its determination that the employee’s claim was in time.
The decision serves as a note of caution to employers and employment practitioners alike when considering pursuing a judicial review application. From a practical perspective, employers should ensure that the disciplinary polices make it clear when the dismissal will take and whether the date of dismissal will be put on hold pending an appeal.
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