Time to claim unfair dismissal
Employees usually have relatively short time limits in which to issue statutory employment claims against their employers. Ignoring for these purposes, the extension of time that will occur to allow for compulsory ACAS early conciliation, in most claims for unfair dismissal, the claim must be brought within 3 months of the effective date of termination. In most discrimination claims, the claim must be brought within 3 months of the date of the alleged discriminatory act (or the last in a series of acts) complained of.
The circumstances in which time limits can be extended are restricted. In claims for unfair dismissal, an employment tribunal may extend time where it was "not reasonably practicable" to present the claim in time. In discrimination claims, the tribunal’s discretion to extend time is wider. It can where it thinks it is “just and equitable” to do so. In general terms, we would consider the time limits to be strict and it is rare for an employee to be able to show cause why their time limit should be extended.
However, two recent Employment Appeal Tribunal cases have demonstrated the diverse results that can occur in relation to time extensions for unfair dismissal claims, when a claimant attempts to file a claim outside of the usual time limits.
In Sterling v United Learning Trust (2014), in which judgment was given in February 2015, the claimant had submitted a claim form, fee and application for fee remission to an Employment Tribunal office on Tuesday 1 July 2014, 4 days before her time limit expired on Saturday 5 July 2014. Her claims were for breach of contract, unfair dismissal and disability discrimination. The claim form was rejected. The reason for the rejection appears to have been that the claimant had not correctly inserted her ACAS early conciliation number into her claim form, which is a mandatory requirement. The claimant, as a result of the fact that the tribunal did not properly address its rejection letter to her, did not discover that her claim had been rejected until Sunday 6 July and she resubmitted it on Monday 7 July 2014.
She was by that point, out of time. At a hearing of the claim in November 2014, in respect of the claims of breach of contract and unfair dismissal, the tribunal judge determined he had no jurisdiction to hear them as a result. It is notable that (i) the claimant did not apply for a reconsideration of the tribunal’s decision to reject the claim in July 2014, she instead resubmitted it out of time and (ii) it was conceded that it had been reasonably practicable for the claimant to have submitted her claim on time, in effect that she had no reason for her delay. That was demonstrated by the fact that she had managed to meet the original time limit, albeit with a claim that contained a defect.
The EAT made in clear that it was the claimant’s responsibility to make sure that her claim form was completed correctly and that it was submitted on time.
The claimant’s disability discrimination claim was allowed to proceed by the tribunal judge. The EAT makes little reference to this as it was not a subject of the appeal. It is assumed that this was allowed to proceed either because the facts on which the discrimination claim was based extended beyond her date of dismissal or the tribunal determined that it was just and equitable to allow that claim to proceed.
In Higgins v The Home Office and another (2014), in which judgment was given in May 2015, a claimant with a long history of mental illness submitted a claim to the employment tribunal for unfair constructive dismissal some 6 years after the date her employment ended. The claim was poorly drafted. It was rejected on a number of grounds, two of them being (i) that the claim was brought outside of time limits and (ii) that the claimant did not appear to be claiming unfair dismissal. The claimant appealed against this decision to the EAT.
On the question of whether it had been reasonably practicable for the claimant to have submitted her claim on time, the EAT judge noted that the claimant had suffered from mental illness and had presented a letter from a psychiatrist stating that for the past 6 years, she had not been well enough to pursue a legal case as part of an application for reconsideration of the rejection. Her application for reconsideration had also been rejected.
The EAT set aside the decision to reject the unfair dismissal claim and returned the matter to a different tribunal judge for reconsideration as to whether it should be allowed to proceed. On the question of whether it had been reasonably practicable for the claimant to submit her claim on time, the EAT noted that the words “not reasonably practicable” should be given a liberal interpretation in favour of the employee and was a question of fact. In this particular case there was sufficient material to show that the claimant may have had significant mental health issues and should have asked for representations from the claimant regarding failure to meet the time limit before rejecting the claim.
So in summary, on 2 different cases in which time extensions for an unfair dismissal claim were considered, one which was technically 2 days late was not permitted to proceed and one which was 6 years late may be permitted to proceed, one of the key factors being that the first claimant could not show that it was not reasonably practicable for her to submit on time and the second could.
Employers can in general terms, still rely on the 3 month time limit for statutory issuing an unfair dismissal claims and can feel comfortable that once the time limit has expired, claims cannot be brought. But note that in exceptional circumstances that limit may be extended.
For further information on the issues raised in this article, please contact Helen Wyatt on 020 7925 8083 or by email at email@example.com.
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