Unfair Dismissal Time Limit Extensions

I’ve written a little book on Time Limits in Employment Tribunals (sent free, along with several of my other books, to all members of the HR Inner Circle), and I thought in this article I’d include an extract from it. 

The one I’ve picked is about extending the three month unfair dismissal time limit. Let me make one preliminary point: what I’m talking about doesn’t take into account extensions because of Acas Early Conciliation. That’s for the very simple reason that Early Conciliation has its own chapter in the book. What I’m going to talk about today is the statutory test for extending time in unfair dismissal cases which is contained in section 111(2) of the Employment Rights Act 1996. The test is two-fold: 

1. It was not reasonably practicable to present the claim in time; and 
2. The claim was presented within a period of time which the tribunal thinks is reasonable. 

It is for the employee to show that it was not reasonably practicable to present the claim in time.  

There are seven situations I’m going discuss. 

1. Technological failure 
2. Sending the form to the wrong place 
3. Illness 
4. Ignorance 
5. Advisers at fault 
6. Internal appeals 
7. New information

Case law suggests that the section should be interpreted liberally in favour of the employee. It is particularly relevant what the employee knew about their right to bring a claim and the relevant time limits. Knowledge of the right to bring a claim will make it more difficult for an employee to argue that their ignorance of the time limit was reasonable. The tribunal also looks at what the 'reasonable' employee would or should have known. The good news for employers is that this test is not one of fairness or prejudice (or lack of it), to either employer or employee. It's about whether the claim could have been lodged in time. If it could have, but was not, the employee's application for an extension of time will fail.  

So what sort of things fall into the 'not reasonably practicable' sphere? 

As you can imagine, there is an awful lot of case law on this issue, involving employees who are desperate to get their late claims within time. The decisions are fact-based however, so the back catalogue of reasons for extending time might not always apply in quite the same way to another set of facts. But let's look at some of the arguments which have been used successfully in the past: 

1. Technological failure 

We've all been there. Desperately trying to communicate with the tribunal on deadline day and failing miserably. A technical hitch during a last minute bid to lodge in time is unlikely to get much sympathy from the tribunal. The obvious question they will ask is 'why did you leave it so late?'. As one judge noted in the Employment Appeal Tribunal case of Fishley v Working Men's College back in 2004:  

'It is the common experience of anyone who has tried to operate a computer, a printer, or a fax machine, that they are temperamental creatures and one cannot rely on success first time within a few minutes.’ 

Technology has moved on significantly since 2004 but the temperamental nature of computers and technical equipment has not, especially at those moments where time is of the essence.  

And a tribunal won't care if something is lodged one minute late or one month late. The effect is the same. If it could have been lodged in time, it was reasonably practicable to do so. In Beasley v National Grid, the employee lodged his claim form 88 seconds after midnight on deadline day. He had tried to do so 15 minutes earlier but got the address wrong. The email was returned undelivered a minute later. He'd then sent a test email at three minutes to midnight, before finally sending the claim form at midnight. Both the employment tribunal and the EAT said it was reasonably practicable for the employee to lodge his claim in time. The same decision was reached by the EAT in Miller v Community Links Trust where a claim was submitted online at one second to midnight and received at eight seconds past. The tribunal would not extend time because it had been reasonably practicable to lodge the claim in time.  

2. Sending the form to the wrong place 

Tribunals have looked at cases where the claim form has been sent to the wrong place. In McFadyen v PB Recovery, the claim form was submitted online giving the employer's Bristol office address but not the employee's place of work in Scotland. The claim was received by Bristol within the time limit but was rejected; Bristol did not have jurisdiction to hear the claim because the employee worked in Scotland. The claim was submitted a few days late to the Glasgow employment tribunal. The Employment Appeal Tribunal did not agree that the claim was deemed received when it was lodged in Bristol. The EAT said that in some cases, where a technical fault has occurred, an extension of time might be justified. But in this case, the employee had control over where the claim went. He just sent it to the wrong place. A win for the employer then. 

In another claim about online lodging, Solus v Matthews, the employee did an internet search for 'industrial tribunal' after he was dismissed in 2009. Of course, tribunals had been renamed ‘employment tribunals’ three years earlier. He then followed the link and accidentally lodged his claim in Northern Ireland instead of England. The Northern Ireland tribunal sat on the claim for two weeks, rejected it – but by that time Mr Matthews was out of time to lodge a claim properly.  was The EAT said that the important question to ask was whether the mistake was a reasonable one to have made. The case was sent back to the tribunal to decide whether the mistake occurred because the employee didn’t make the necessary reasonable enquiries.  

3. Illness 

If an employee cannot lodge their claim in time because of genuine illness, the tribunal is likely to decide it was not reasonably practicable for them to have done so. In Schultz v Esso, the employee was dismissed due to absence related to depression. He spent the first six weeks of the limitation period trying to pursue an internal appeal. In the last six weeks he was too ill to instruct a solicitor. The Court of Appeal said it had not been reasonably practicable to present the claim on time. Although the employee was well enough to do it in the first six weeks, he was trying to pursue an internal appeal which was designed to avoid litigation completely. A win for the employee on this occasion. 

The tribunal will have to decide in each case whether the illness was sufficiently serious to justify a finding that it was not reasonably practicable to lodge the claim in time. What if the employer knows the employee was well enough to do other normal day-to-day things, or even pursue an event acknowledged to be stressful, such as moving house? It might be relevant, but a tribunal will look at all the facts. In University Hospitals Bristol v Williams, an employee with a serious mental health issue failed to lodge her claim in time. The employer argued that she should have done so because she managed to move house and find her child a new school within the limitation period. The EAT disagreed. Just because she was well enough to do those things did not mean it was reasonably practicable for her to also lodge her claim within that period.  

Whether it was reasonably practicable to lodge a claim in time will be different for each employee based on their own health and circumstances.  

4. Ignorance 

What if an individual simply doesn’t know their rights, either the right to bring a claim or the relevant time limit? Will that be enough to win an extension of time? Not necessarily. The ignorance must be reasonable. And it is for the tribunal to decide what is reasonable. The difficulty for employers is that this decision is one to be made on the facts, which means it can only be overturned by appeal courts if it is perverse. That is a very high threshold. 

So what sort of things can be 'reasonable' ignorance? A potentially misleading letter from an employer which led the employee to believe that a claim could be left until the appeals process was exhausted might be reasonable in some cases, as it was in Marks & Spencer v Williams-Ryan. In this case, the employer's letter referred to the employee's right to bring a tribunal claim but did not give any deadline. The EAT said that a finding of reasonable ignorance was generous but not perverse. In another case, Andrews v Kings College Hospital, honest but wrong information about the deadline from the employer to the employee resulted in reasonable ignorance. Employers should ensure that any correspondence to employees is clear, accurate and not misleading. 

Youth and inexperience can be relevant too. In John Lewis v Charman, a young and inexperienced 20-year-old had no knowledge of employment tribunals or the right to bring an unfair dismissal claim. He was reasonably ignorant about his rights and was not required to research the position until after the outcome of his internal appeal. 

And what sort of things are not reasonable ignorance? Seemingly similar stuff actually, which shows that these cases really do depend on their individual facts. In Porter v Bandridge, the employee was unaware of the right to bring a claim but on the facts it was found that he should have known about it. The same happened in Reed v Fraine, where an employee lodged a claim late because he thought the deadline ran from the day after dismissal rather than the termination date. The EAT said his ignorance was not reasonable. He had not been misled. He had failed to seek advice and just made wrong assumptions. 

5. Advisers at fault 

If an employee is represented by a skilled adviser — a solicitor, employment consultant or Citizens Advice, for example — the tribunal will usually say that it was reasonably practicable to present the claim in time. In this situation, the employee would have a negligence claim against the adviser.  

If it is a skilled adviser who has failed to lodge the claim in time, the tribunal will want to know that the adviser has taken all reasonable steps to ensure it was lodged in time. An extension on this basis will be rare, as the standards of knowledge and skill expected are much higher than that of an ordinary employee. 

6. Internal appeals 

An employee will not be let off the time limit hook just because they are pursuing an internal appeal. Appeals do not 'stop the clock' on limitation. Claims should be submitted before appeals have concluded if the time limit is approaching. There is a crossover with ignorance, though. As set out above, there may be cases where an employee's ignorance of the law during an appeals process results in an extension. 

7. New information 

What if new information comes to light after the deadline which suggests that the employee's claim is stronger than they originally thought? In theory, the discovery of facts that were previously unknown can result in an extension. Let's take the situation where someone is made redundant and only discovers that someone else has been employed to do their job after the deadline for lodging a claim has expired. A tribunal would probably find that it was not reasonably practicable to lodge in time. An employee needs to show that they were reasonable to be unaware of the situation for as long as they were. They must also show that the new information genuinely changed their view — from believing they had no claim to believing that they did.  

The employee must still bring the claim within a reasonable period of time after that discovery: remember the second part of the two-stage test. What is a reasonable period will depend on the facts. Let's look at this in more detail. 

What is a reasonable further period to lodge a claim? 

The test is not whether it was reasonably practicable to lodge the claim earlier. It's not as strict as that. What is reasonable will depend on the case. Here are a few cases which have looked at this issue: 

• In James W Cook v Tipper, employees were dismissed but told they would be reemployed when work picked up. Consequently, they didn’t submit claims. After the deadline for bringing claims, the employer closed down. Some employees lodged claims a few days later, others a month later. On the facts, the tribunal said a period of two weeks was reasonable, and dismissed any claims lodged after that. 
• In Locke v Hands Music Centre, a five-month delay was found to be reasonable where the employee was undergoing cancer treatment which had started immediately after his dismissal. 
• In another case called Remploy v Brain, an employee was found to have lodged her claim within a reasonable period when she waited a further three weeks after finding out about the time limit. Her claim was two and a half months late. She waited for the ET1 to arrive in the post (she had not been told about online submission), focussed on the internal appeal, and then spent five days preparing the form before lodging it. 
• In Norbert Dentressangle Logistics v Hutton, an employee was found to have submitted his claim within a reasonable period even though he waited a further six weeks because he was 'unable to face' completing the claim form in that period. He provided no medical evidence. The EAT reluctantly refused to interfere, because medical evidence was only desirable rather than essential. 

The last two seem particularly generous and concerning for employers. Unfortunately, the appeal courts cannot interfere with decisions the tribunal makes about the facts unless they are perverse. 

So that's one of the chapters from my new book on Employment Tribunal Time Limits. If you’re interested in getting hold of a copy, it’s available to members of the HR Inner Circle, which is the UK’s community for smart, ambitious HR professionals. If you want to have a look, you can find out more at www.hrinnercircle.co.uk.