Time limits in Employment Tribunals are extremely tight and we are seeing a number of cases where claimants are the Tribunal for extensions because they have put their complaints in too late.
The Tribunal does have the power to extend the time limits and in this article we explain when this will be possible, and when it won’t.
Time limits in Employment Tribunals are generally 3 months. Calculating the point at which the clock starts running can be very difficult and claimants often get it wrong. Matters have been further complicated with the introduction of the early conciliation rules, which mean that time limits are extended so that compulsory ACAS conciliation can be entered into.
It is hardly any wonder, therefore, that many complaints are submitted out of time. But what are the circumstances in which this can be extended?
There are 2 main categories of case when it comes to extensions of time:
- unfair dismissal cases, where a “not reasonably practicable” test is applied; and
- discrimination cases, where a “just and equitable” test is applied.
Unfair dismissal: the “not reasonably practicable” test
Tribunals can extend the basic 3 month time limit for bringing unfair dismissal claims in the following circumstances:
- it was “not reasonably practicable” for the claim to be presented in time; and
- when it did become reasonably practicable to present the claim, it was presented within a reasonable amount of time after that.
Although every case will be fact-specific, the following factors will be relevant:
Technical problems. Last minute computer, printer or fax glitches are unlikely to be persuasive. Tribunals will be very critical of the fact that the submission of the claim has been left until the last minute. The Tribunal will generally allow no margin of error: so, where a form was submitted online one second before midnight, and received 8 seconds late, it was out of time.
Illness. Tribunals tend to be more generous in these cases, particularly where the illness is serious. There have been cases where, for instance, depression was seen to be a good reason, but other cases have held that stress would not be covered under this principle, and cases where, despite the existence of the mental health issue, the claimant has been able to do other things during the period of delay, such as find a new home/school.
Ignorance. The general rule is that the lack of knowledge of time limits is not a good excuse, unless the lack of knowledge is “reasonable”. These are usually cases where there has been some sort of misrepresentation or faulty advice (as to which see below). So, where an employee has not been misled and has sought no advice, their ignorance will generally unreasonable. However, there has been a case where a 20 year old claimant was reasonably ignorant because of their age.
Misrepresentation by employer. Sometimes an employee might be misled into thinking they have longer to bring a claim because of what they have been told, erroneously, by their employer. These tend to be cases where the law has been interpreted generously in favour of the claimant, so businesses should beware.
Faulty legal advice. Time will usually not be extended where a claimant has sought the advice of a professional legal adviser, and this has been wrong. Instead, the claimant will need to bring a claim against that adviser for negligence. The central question here is what type of adviser will give the claimant this sort of protection. Erroneous advice from solicitors, employment consultants and CAB advisers will leave claimants on the hook, whereas Tribunals may forgive claimants for relying on the advice of unskilled advisers such as unqualified charity volunteers.
Internal appeals. Following an internal process of appeal will not, in itself, be a good reason for an extension of time. Claimants should submit their claims where the time limit is running out, even before the process is finished.
New information coming to light after the time limit. These cases usually involve redundancy exercises, where the claimant has discovered, too late, that they were not in fact redundant and had been replaced by someone else. Provided the new information is crucial and it was not reasonable for claimants to be aware of it earlier, Tribunals will look favourably on requests for extensions of time on this basis. They will, however, expect the employee to act reasonably promptly in bringing their claim after they have found out.
Discrimination Claims: the “just and equitable” test
The just and equitable test is a far easier hurdle for the claimants to jump than the “reasonably practicable” test. The Tribunal can take into account anything that it sees relevant in these cases. Naturally, all the above factors above will be relevant.
Additionally, however, the Tribunal will look into the fairness of the situation. So, the following factors will be also relevant in these cases:
- Conduct of the parties
- Length of delay
- Reasons for delay
- Whether the cogency of evidence is likely to be affected by the delay
- Whether a fair trial is still possible
- Whether the respondent has cooperated with requests for information