Unhappily, in this case the claimant missed the last 2 digits from the early conciliation number in her Employment Tribunal application form. The Tribunal barred her claim because of this, but should they have done so?

Background

The claimant, Miss Adams, wanted to bring Tribunal proceedings against BT for unfair dismissal and discrimination. Although she visited the Employment Tribunal with her solicitors on the last day for making the claim, she unfortunately missed the last 2 digits from the early conciliation certificate number when the form was filled in.

The Tribunal, a few days later, wrote to the Claimant to say that the claim form did not have the correct information on it, but by this time she was out of time to bring the claim. She did bring her claim immediately on finding out about the discrepancy, but by this time it was 2 days late.

She asked the Tribunal to use its discretion to extend the time limit for her.

When it comes to the Tribunal’s discretion to extend time limits, there is a discrepancy between the test applied to unfair dismissal claims, and the test applied to discrimination claims.

For unfair dismissal claims, the employee needs to show that it was not reasonably practicable to submit the claim. A gloss has been put on this test by cases over the years, and where the claimant has a mistaken belief about, or is ignorant of something, and this is the reason for the delay, they will be forgiven if it was reasonable for them to be ignorant or mistaken in the circumstances.

In this case, because the claimant could not have been aware of the mistake until the limitation point had expired, the EAT held that her error had been genuine and unintentional, and that the presentation of the complaint out of time had been reasonable. As she had submitted her claim straight away after finding out about the error, she satisfied a second test which is that she brought the claim as soon as reasonably practicable thereafter.

In relation to discrimination claims the test is whether or not the “balance of prejudice” favours the claimant, and whether or not it is “just and equitable” to extend time. In this case, the claimant would obviously suffer extreme prejudice by having her claim disbarred, whereas BT would suffer no prejudice at all as the claim was only a couple of days late. It was therefore just and equitable for the EAT to extend time.

Implications

Claimants need to beware that Tribunal rules when it comes to accepting ET1s are very strict. There is some leeway, for instance where the address is written incorrectly, but this is not always exercised in favour of claimants.

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Updates: For employers: Tribunals | For employees: Tribunals |

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