Was the Tribunal right to strike out a claim brought 6 years out of time, where the claimant had suffered from mental health issues over that period?
No, said the EAT, in the recent case of Higgins v. Home Office.
Employment Tribunals have 2 ways of dealing with claims that have been brought out of time. They can either strike them out under Rule 12 of the Employment Tribunals Rules of Procedure as an abuse of process, or deal with them under Rule 27. The difference between the two rules, is that Rule 27 requires the claimant to be given an opportunity to make representations or have a hearing, whereas Rule 12 gives them no such opportunity.
Claims can also be struck out under Rule 37 because, for instance, they have no reasonable prospects of success.
In this case, Mrs Higgins, who was employed by UK Visas & Immigration, experienced serious mental health issues just before her employment ended, and she was subsequently admitted to hospital with acute psychosis. She sought to bring proceedings for unfair dismissal some 6 years later and her claim was struck out – without hearing – under Rule 12, as an abuse of process.
During the proceedings before the Employment Appeal Tribunal, she submitted a letter from her psychiatrist saying that she had been in no fit state over the 6 years to bring proceedings. She argued that she should have been given an opportunity to argue that it had not been reasonably practicable for her to bring her claim during this period, and that she would have been able to do so had the Tribunal proceeded under either Rule 27 or Rule 37. Instead they had proceeded under Rule 12, on the basis that her claim was an abuse of process, which afforded her no opportunity to make any representations.
The Employment Appeal Tribunal held that the mere presentation of the claim out of time does not amount to an abuse of process, and that the Tribunal’s wielding of Rule 12 in this manner had been overly draconian, as the claimant had had not chance to make representations. They sent the case back to the Tribunal for reconsideration.
Strangely, this is the first ever decision about Rule 12. It appears that Tribunals will be more reluctant after this decision to use it, and this will be a boon for claimants whose cases are considerably out of time but with good reason.