Dismissed employees only have a certain amount of time after the dismissal in which to bring a claim in an Employment Tribunal. The basic time limit is three months from the effective date of termination (known as the EDT), however, employees can extend that if they lodge the matter with Pre-Claim ACAS Conciliation and so it is no longer the case that, after three months, employers can breathe a sigh of relief.
If an employee misses the time limit for bringing his claim but brings a claim in any event, then the Tribunal has to consider whether it was (a) reasonably practicable to present the claim within the primary time limits (three months or extended by ACAS Conciliation) and (b) if it was not reasonably practicable, whether he or she has presented the claim within a reasonable period thereafter. This is under section 11(2)(b) of the Employment Rights Act, 1996.
If you as an employer, are faced with a Tribunal claim, it is always worth considering the time limits and jurisdiction as the very first part of any defence, to see whether the claim might be struck out on such grounds.
In a recent case (Cygnet Behavioural Health Limited v Britton), the Employment Appeal Tribunal (EAT) gave a relatively pro-employer decision and on the facts of that case found that the employee was out of time.
In the claim, the Claimant had missed the primary time limit and had not then submitted his claim for a further 62 days. He pleaded a number of problems, including dyslexia, mental health problems and an ignorance of the time limit. He gave evidence that because he had started another job and was dealing with other issues in the claim (he had to deal with a Statutory Regulator of Healthcare Professionals during the time when he should have submitted the claim) he said that took up a lot of his time and so he had missed the original time limit.
The original Tribunal gave a judgment entirely in favour of the employee finding that his mental health, dyslexia and problems with his health, plus his new jobs and time dealing with the Regulator, had meant it was not reasonably practicable to meet the time limits.
The employer appealed that decision to the Employment Appeal Tribunal, that the decision was ‘perverse’. The argument on appeal that the decision is perverse is a very high burden for the employer and to overturn the original decision the EAT must find that the original Tribunal’s decision is irrational, fundamentally wrong, outrageous, or flies in the face of properly informed logic.
On the facts here, however, the EAT found those tests were met. It decided that he had been able to do a great many things from his dismissal to the expiry of the primary time limit and thereafter, including working various jobs, moving house and engaging an appeal, liaising with ACAS, etc. All of this meant there was no logical reason why he could not have met the original time limit or submitted the claim within a reasonable time thereafter. The claims were accordingly struck out.
Employers should note however that the EAT also commented that, although the test for unfair dismissal claims of reasonable practicality failed, if any claim for discrimination had been brought, then there is a wider and more lenient test on the employee, known as the ‘just and equitable test’, which may well have been satisfied. Tribunals are far more lenient in such cases.
Motor Industry Legal Services
Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.