Mr Fox was an employee of British Airways and had been suffering from a severe back condition and was absent from work on long term sickness absence. He was due to have an operation which he believed would allow him to return to work, however he was dismissed 5 days before his operation was due to take place.
Mr Fox died unexpectedly 3 weeks following the surgery. As he was no longer employed at the time of his death, he was no longer entitled to his death in service benefit worth £85,000 and therefore his dependants did not receive any payment.
His father issued a claim on his behalf for unfair dismissal and disability discrimination, however his father had no authority as administrator of his son’s estate to make such a claim. He applied within the ET1 to act as the authorised representative of his son; however he failed to follow the correct procedure to do so.
Under the Employment Rights Act s.206 the deceased’s representative must be appointed before the claim is issued, however the 3 month time limit in order to present a claim would have expired by the time this authority was granted.
The Tribunal failed to appoint Mr Fox’s father in the required time limit, however the claim was allowed to proceed as the Tribunal would have extended the time limit to allow for the appointment of his father to act and the claim to be presented outside the 3 months.
The Tribunal found that the loss of death in service benefit was of no substance to the deceased and therefore judged that a nominal sum of £350 should be made to the estate. Mr Fox’s father appealed and British Airways cross appealed on the basis that the claim was made out of time.
The EAT considered that the death in service benefit was a real loss suffered by Mr Fox, in that he had lost the entitlement to have the sum paid to his dependants upon his death, although he himself had not suffered pecuniary losses. The original Tribunal decision was overturned. The EAT awarded the full sum of the death in service benefit amounting to £85,000 to his estate.
The EAT upheld the Tribunal’s decision that the claim could be heard and rejected the argument of British Airways that it was presented out of time. Although Mr Fox’s father was not appointed as the appropriate representative at the time of presenting the claim, the claim was presented in time and he could therefore assume he had presented it correctly. The time limit could be extended to allow for his father to be appointed as the representative in order to present the claim correctly.
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