All claims in the Employment Tribunals have clear time limits attached to them. For example, a claim for unfair dismissal must be brought within 3 months of the date employment terminated. A discrimination claim must be brought within 3 months of the discriminatory act. However, there are circumstances in which an Employment Tribunal has discretion to extend the time limit so as to accept a claim after the original deadline has passed.
Recently the Employment Appeal Tribunal (EAT) considered two appeals relating to time limits. The first concerned a decision to grant an extension in a claim for unfair dismissal and unlawful deductions (Norbert Dentressangle Logistics Limited v Mr Hutton (2013)). The second concerned a decision that a claim for unfair dismissal and disability discrimination was out of time (Robinson v Fairhill Medical Practice (2013)).
Employment Tribunals may only extend time in unfair dismissal cases where it is satisfied of the following:
- That it was “not reasonably practicable” for the complaint to be presented before the end of the deadline.
- While the claim was not presented before the end of the deadline, the claim was nevertheless presented within a reasonable period.
The test is different for discrimination claims, where the Employment Tribunal must consider whether it is “just and equitable” to extend the time limit. This test is in practice easier for a claimant to overcome.
In the case of Norbert Dentressangle Logistics Limited v Mr Hutton, Mr Hutton was dismissed from his employment on 18 January 2012. His dismissal followed disciplinary action against him involving allegations of conspiracy to defraud and theft. The time limit for lodging his claim expired on 17 April 2012. Mr Hutton did not lodge his claim until 30 May 2012. Therefore, it was exactly six weeks out of time.
In the Employment Tribunal hearing on the matter, the Employment Judge accepted Mr Hutton’s evidence that after 7 March 2012 he could not face doing anything as he was “not functioning at all at these times.” Mr Hutton suffered anxiety and was unable to leave his home for a time. As such, Mr Hutton said he only felt well enough to deal with lodging a claim in May. The Employment Judge felt the evidence of Mr Hutton was credible, and that it was not reasonably practicable for the Mr Hutton to have presented the claim until May when he felt able to do so. He was allowed to proceed with his claim.
The employer appealed against this decision to the EAT. There were various issues raised in the appeal, but it was highlighted that there was no medical evidence provided to support Mr Hutton’s version of events, and also that he had engaged in some correspondence with the company during April.
The EAT decided that the decision of the Employment Judge should stand as her overall assessment was fine in regard to the statutory test, although they were critical that it lacked detail. The Employment Judge had found Mr Hutton’s evidence credible and therefore, the EAT said it was reasonable for Mr Hutton to have lodged his claim after the deadline.
In the case of Robinson v Fairhill Medical Practice, Mrs Robinson was summarily dismissed for gross misconduct. Mrs Robinson was absent from work due to illness, and all correspondence was being sent via her solicitor. The company sent confirmation of Mrs Robinson’s dismissal to her solicitor via email on 6 July 2011. The solicitor informed Mrs Robinson on 7 July 2011, and this was not seen by her until 8 July 2011.
The Employment Tribunal firstly had to consider what the effective date of termination was. Case law has established that the three‑month period to lodge a claim runs from the date on which the employee has read a dismissal letter or has had a reasonable opportunity to read it. As the solicitor was acting as Mrs Robinson’s agent, the effective date of termination was 7 July 2011 when the solicitor communicated the dismissal to her. The deadline for a claim was therefore 6 October 2011. However, the claims for unfair dismissal and disability discrimination were not lodged until 8 October 2011; 2 days after the expiry of the time limit.
The Employment Tribunal struck out both claims as out of time and Mrs Robinson appealed this decision to the EAT. The EAT decided that the Employment Tribunal had correctly struck out the claim for unfair dismissal, because there was no reasonable explanation for why the solicitor had not lodged the claim in time. However, the EAT overturned the decision to strike out the disability discrimination claim on the basis that the solicitor’s fault in the matter should not to be held against Mrs Robinson.
These cases highlight that employers cannot always be confident that a claim lodged out of time will not proceed, particularly with discrimination claims. It is logical that claims lodged many months or even years after the deadline has passed are unlikely to be allowed to proceed. However, those lodged only a few weeks or months after the deadline carry some risk if a claimant persuades an Employment Tribunal to allow it to proceed. That said, such matters are examined on a case-by-case basis so if any matters arise around an issue with a deadline, we recommend that specific advice is sought at the time.
Do you need advice on time limit matters for Employment Tribunal claims? We can help. Please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).