New EAT Decisions

The following decisions have been placed on the EAT website this morning.

EFFECTIVE DATE OF TERMINATION - RESIGNING BY FAX AFTER OFFICE CLOSES
Potter v RJ Temple (HHJ Richardson, 18/12/03)

The employee sent a letter of resignation (accepting an alleged repudiatory breach by the employer) to the employer's office by fax at 8.21pm on Friday 13th September. The office had closed, and the fax was not seen until the following week. If the EDT was 13th September, then the IT1 presented on 13th December was out of time. If the EDT was the following Monday, then the IT1 would have been presented in time.

In a clear and well-reasoned judgment, the EAT drew a distinction between the strict common-law position on communication of acceptance of repudiatory breach by fax, and the 'common-sense' position that was called for under the unfair dismissal legislation. It held that the resignation had been validly communicated on 13th September, and accordingly upheld the tribunal's finding that the unfair dismissal complaint had been presented out of time.

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COSTS
Health Development Agency v Parish (HHJ Richardson, 24/10/03)

Even when costs are awarded in respect of unreasonable conduct of proceedings, a tribunal must disregard any costs incurred before the IT1 (or, if the Respondent, the IT3) was lodged - irrespective of whether the party was acting unreasonably in the period before the pleading was lodged. Rule 14 does not confer power to award costs in respect of this early period. It is founded upon a finding as to the way a party has brought or conducted proceedings, and this assumes that proceedings have been brought.

Comment: This decision may be controversial. Whilst the tribunal has no jurisdiction to award costs in connection with unreasonable conduct if no proceedings are actually brought, there seems to be no valid reason why - once jurisdiction is triggered - the entire costs should not be recoverable. This decision will encourage (a) proceedings to be issued swiftly, when negotiations might otherwise prove fruitful, and (b) parties to delay their investigations, and matters such as taking preliminary witness proofs, until after proceedings have been started.