In accordance with the Employment Rights Act 1996 (ERA), and subject to the rules on the automatic extension of time for early conciliation, a claim for unfair dismissal must be presented within a period of three months starting with the effective date of termination.
So for example, if an individual’s last day of employment is 13 March, their claim must be received by the tribunal on or before 12 June.
Tribunals have the power to extend the time limit further, but only where they are satisfied that it…
“was not reasonably practicable for the complaint to be presented before the end of that period”.
However, the claim must still have been presented within such a further period that the tribunal considers “reasonable”. In practice, orders for extensions of time limits are rarely granted.
The Governing Body of Sheredes School v Davies
In this case, the Employment Appeal Tribunal (EAT) upheld the stringent nature of the rules on tribunal time limits and ruled that an intervention by the Solicitors’ Regulation Authority (SRA) was not sufficient justification for presenting a claim out of time.
Case Facts
Mr Davies was dismissed from his employment as a caretaker at Sheredes School on 12 June 2015. On 21 July 2015, he instructed a firm of solicitors to represent him in an unfair dismissal claim and entered into the process of early conciliation with ACAS.
On 25 September 2015, ACAS issued an early conciliation certificate. In accordance with the rules on the automatic extension of time limits where a claimant has entered into early conciliation, the deadline for Mr Davies to submit his claim was 25 October 2015.
On 8 October 2015, Mr Davies’ solicitors advised him to seek new representation but did not give any advice as to the time limit for him to present his claim.
Mr Davies immediately sought to find new representatives and obtained his file from the original firm of solicitors.
On 14 October 2015, the SRA intervened at the original solicitors firm, preventing it from contacting any clients or taking any action and taking possession of all its papers. Mr Davies was unaware of this intervention.
On 5 November 2015 (11 days out of time), Mr Davies saw another solicitor who advised him for the first time of the missed time limit and the need to issue the claim urgently. Mr Davies presented his claim without his original file or the benefit of legal assistance on 10 November 2015 (16 days out of time).
The Employment Tribunal accepted his claim, extending the time limit on the basis that the intervention by the SRA was a “special reason” that made it not reasonably practicable to present the claim in time. The decision was appealed in the EAT.
Decision
The EAT overturned the Tribunal’s finding, ruling that the claim was out of time on the basis that the failure to present it in time arose solely and unquestionably from the fault of the original firm of solicitors who did not advise Mr Davies of the time limit to bring his claim, and not due to the SRA intervention.
The EAT held that had Mr Davies been informed of this time limit then it would have been possible for him to present his claim in time, regardless of the SRA intervention.
Comment
The above case illustrates the harsh application of the rules on time limits for bringing claims. It is principally a claimant’s responsibility to know and to understand the time limits applicable to their claim.
If employees miss a time limit for bringing a claim that they could reasonably have met, even if only by a matter of minutes, the tribunal will not have jurisdiction to hear their claim.
However, it should be noted that the EAT in the above case remarked that in different circumstances, the SRA intervention might well have a “special reason” for the claim being presented out of time. In particular, if the conversation on 8 October 2015 between the original firm of solicitors and Mr Davies had not taken place.
If you would like advice regarding these issues, please contact our specialist employment law team on 0800 024 1976 or via our online form.