• Robert Spicer

Employment Tribunal: time limits

The basic limitation period for ET claims is 3 months from the effective date of termination of employment (EDT). This is normally extended by one month when the compulsory application to ACAS for early conciliation is made. The application for early conciliation must be made within the three-month period.

The ET very rarely allows the lodging of claims after the expiry of the limitation period.

It is important to be aware that the deadline must be carefully diarised. Running cases up to the wire is pointless, causes extreme stress and may result in the deadline being missed, for example where administrative mistakes or computer issues arise.

Case examples include:

Solicitors’ negligence

Pora v Cape Industrial Services Ltd (2018), where P was dismissed by C. He instructed solicitors to complain of his unfair dismissal. The solicitors were recommended by Citizens Advice. He was repeatedly assured that all was in hand. No claim was made to the ET until the time limit had expired. P submitted his claim and requested an extension of time on the basis of the solicitors’ negligence. The ET ruled that it had been reasonably practicable for him to present his claim in time, and it had no jurisdiction to consider the complaint. P appealed to the EAT.

The appeal was dismissed. The ET had correctly concluded that it was reasonably practicable for P to have presented his claim in time.

Mistake of fact

Lowri Beck Services Ltd v Brophy (2019). B, who has dyslexia, was employed by L until he was dismissed for gross misconduct. B’s brother, who is not legally qualified, helped him to start proceedings for unfair dismissal, wrongful dismissal and disability discrimination. The claim form was submitted out of time because of a misunderstanding as to the effective date of termination by B and his brother. The ET extended time in relation to the disability claim and the unfair and wrongful dismissal claims, on the basis that B was a vulnerable individual and his brother’s mistake arose from a mistake of fact rather than an error of law. L appealed to the EAT.

The appeal was dismissed. There was no basis to interfere with the decision of the ET.

Wrong address

Rana v London Borough of Ealing and another (2018). The ET sent written reasons to the address of solicitors who no longer represented the claimants, with subsequent delays in the copies being received by the correct recipient. One claimant lost her claim for unfair dismissal and disability discrimination. In theory she was sent the written judgment on 28 April 2015. She wrote to the tribunal five times and made numerous telephone calls before finally receiving the documentation by email on 4 June. She lodged her appeal to the EAT on 15 July, which was 39 days out of time, assuming that the documentation had originally been sent to the correct address. Another claimant met the 42-day deadline but key documents were missing and were lodged out of time. The EAT judge refused to extend the 42-day deadline on the basis that a judgment and written reasons were still sent to a claimant even if they were sent to the wrong address. The claimants appealed to the Court of Appeal.

The appeals were allowed.

The tribunal had made a mistake as regards a matter of fundamental importance. The guiding principle should be that the party affected by that mistake should not be put in a worse position than if it had done its job properly.

One does not ‘send’ something to John Doe by sending it to Richard Roe. One does not ‘send’ a document to a party to litigation by sending it to the representative of another party. It seems to be wrong to say one sends something to someone by sending it to someone else.

Non-working day

Miah v Axis Security Services Ltd (2018). M’s unfair dismissal claim was received by the ET one day after the expiry of the three-month time limit. The ET judge refused to accept the claim on the basis that it had been reasonably practicable for it to have been presented in time. M appealed to the EAT on the ground that the judge had failed to have regard to the fact that the day before the claim was presented was a non-working day.

The appeal was dismissed. Where there could be no receipt by the ET, for example because the office was closed and there was no letterbox, the limitation period might be extended. Where there was a letterbox, the period would not be extended.

If a claim presented on the next working day was in time, this would mean that the time limit was automatically extended in such circumstances. That was not what the regulations provided.

Discretion of tribunal

Rathakrishnan v Pizza Express Restaurants (2015). R, a diabetic employed by P, was dismissed for breaches of food safety procedures. He complained of disability discrimination. This complaint was brought 17 days outside the three-month time limit. He applied for an extension of time on the basis that the claim was late because he feared being victimised because he was still employed by P. The ET refused to extend the time limit. R appealed to the EAT.

The appeal was allowed.

A multi-factor approach was required in the ET exercising its discretion to extend time limits. In the present case, considerations of the balance of prejudice caused and the potential merits of the claim were relevant factors. The ET had not taken these factors into account.

Extension of notice period

Wallace v Ladbrokes Betting and Gaming Ltd (2015). W resigned in writing from her job. The resignation letter was unambiguous and unequivocal. She complained of unfair constructive dismissal. The ET ruled that the claim was out of time. W appealed, arguing that correspondence and discussions with her employer meant that the employer had agreed to extend her notice period for 3 weeks, which meant that the claim was in time.

The appeal was dismissed.

Once W had unequivocally resigned, she could not unilaterally withdraw or extend her notice period. There had been no agreement to withdraw the notice of termination

Ignorance of right to claim

Paczkowski v Sieradzka (2017). P was dismissed after two months employment. She was advised by the Citizens Advice Bureau, ACAS, and her trade union, that she could not bring a claim for unfair dismissal because she did not have two years continuous employment. She was later advised by a lawyer that she could bring an automatically unfair dismissal claim without two years continuity of employment if the claim was that she had been dismissed for asserting a statutory right. She then brought a claim of unfair dismissal for asserting her right to have a written statement of employment. The three-month limit for bringing the claim had expired. The employment tribunal ruled that the claim could proceed out of time because P’s ignorance of her right had been reasonable in the circumstances, she had acted promptly in seeking advice after her dismissal and the claim had been lodged within a reasonable period once the possibility of a claim had been brought to her attention. The employer appealed to the EAT.

The appeal was allowed.

A claimant’s ignorance of the right to bring a claim did not mean that it was not reasonably practicable to bring a claim within the time limit. When P was aware of the facts, she could be expected to take reasonable steps to obtain advice.

Where a claimant consulted a skilled adviser she could not claim to be in reasonable ignorance even if wrongly advised.

The tribunal had failed to make specific findings as to the status of the advisers, the context in which the advice was given, the information provided by the claimant and the questions asked. The case would be remitted for further consideration.

Six-year delay

Higgins v Home Office and another (2015). The ET rejected a claim of constructive unfair dismissal brought six years after the date of termination of employment by H, who had a history of mental illness. The ET stated that this was an abuse of process: the claim had been brought outside the time limits, the remedies sought were not those which a tribunal could award and H did not appear to be claiming unfair dismissal. H appealed to the EAT.

The appeal was allowed.

The procedure had been carried out without a hearing and without representations from the claimant. The overriding objective required the ET to have regard to any disability which it knew of. The ET judge had taken into account wholly mistaken factors.

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