Time limits in the ET – not to be taken lightly
If there is a good reason for missing an employment tribunal deadline by a couple of days or so, surely the tribunal will grant an extension? Not necessarily…
Extending time limits for claims in the ET – the not reasonably practicable test
If an employment tribunal does not receive a claim within the relevant time limit, this will on the face of it mean that the tribunal has no jurisdiction to hear the claim. However, the tribunal may extend time to accept unfair dismissal and most other employment rights claims where it finds that it was 1) not reasonably practicable for the claimant to present the claim in time, and 2) the claim was presented within such further period as the tribunal considers reasonable.
Beasley v National Grid Electricity – “no margin for error”
This is the ‘famous’ case on time limits for claims in the ET – famous because the tribunal refused to hear a claim that was received 88 seconds after the deadline. In this case, the claimant submitted his claim by email at 11.44pm on the deadline day but received a bounce-back, having mistyped the email address. He sent his claim again at 12.00am and the claim form was registered as being received by the tribunal just over a minute later – but fundamentally out of time. This was followed by another case, Miller v Community Links Trust, where a claim was submitted 9 seconds out of time and was similarly rejected. In both cases, the tribunal concluded that it was reasonably practicable for the claims to be submitted in time. The claimants in both cases left it until the last minute without any excuse.
Miah v Axis – weekends and holidays count
In the civil courts, if a limitation period would expire on a non-working day, the deadline is extended to the next working day. For example, a deadline expiring on a Sunday would automatically be extended to the Monday. The same rule does not apply in the employment tribunal. In the case of Miah v Axis, a claim form was posted on a Friday for a claim which had to be brought by the Sunday. The tribunal received and stamped the form on the Monday, and it was held out of time. Following the same rationale as in Beasley and Miller, the claimant left it until the last minute to present the claim and it was reasonably practicable for the claim to be brought sooner.
Zhou v North East London NHS Foundation Trust – doesn’t matter who is to blame
The claimant in this case had completed the ET1 claim form herself to save costs, but her solicitors submitted it on her behalf. They didn’t notice that she had entered the EC number incorrectly. By the time the error was corrected, the claim was out of time. In its judgement of 7 January 2019, the tribunal held that the solicitors should have checked that the ET1 form contained all of the mandatory information (such as the EC number) before submitting it. The tribunal considered evidence given by the firm of solicitors which essentially confirmed that it was part of a solicitor’s service to check that the claim form was procedurally fine. The claim was therefore out of time. It is of note that in this case, Counsel for the respondent specifically urged the judge in his submissions to “look at matters dispassionately and to set aside any sympathy…for the predicament the Claimant finds herself in…this is more than a technical defect, employers are entitled… to rely on jurisdictional defences and… this should not be clouded by sympathy for the Claimant or disapproval of such technical barriers or concerns because of the unfortunate procedural history of this case“.
Acetrip v Dogra – exceptional circumstances
Whilst the deadline for bringing claims in the ET can only be granted if it was “not reasonably practicable” for the claim to have been brought in time, the tribunal has discretion in respect of other deadlines to grant extensions where there is a “good excuse” or “exceptional circumstances”. But the case of Acetrip v Dogra, (judgement handed down on 1 March 2019) demonstrates that the ET’s discretion will only extend so far. In this case, Mr Kumar (on behalf of Acetrip) instructed counsel to prepare the appeal against an automatically unfair dismissal judgement and he thought counsel would also submit the appeal on Acetrip’s behalf. A few days before the deadline for submitting the appeal, Mr Kumar was informed he would need to submit the appeal himself. On the day of the deadline, Mr Kumar successfully submitted a number of documents in a number of emails (some of which were sent after the 4pm deadline), but he failed to submit the ET1 and ET3.
It is of note in this case that a few days before the deadline for submitting the appeal, Mr Kumar’s mother in law passed away having suffered from a terminal illness. Mr Kumar was responsible for sorting out the funeral (which was taking place the day after the deadline for the appeal). In addition, Mr Kumar did not have adequate scanning equipment at his home, so on the day of the deadline he had to go to his local Post Office to scan the appeal documents. This took two and a half hours. The tribunal accepted that Mr Kumar didn’t know about the 4pm deadline for filing.
Some 4 weeks after the deadline, Mr Kumar phoned the tribunal to enquire as to the progress of Acetrip’s appeal and was told that the ET1 and ET3 had not been provided. He sent them straight away, however the appeal was deemed to be out of time. Acetrip appealed against this decision.
The EAT was sympathetic to Mr Kumar’s predicament on or around the date of the deadline. Indeed, they confirmed that they were satisfied that there were exceptional circumstances in respect of the late receipt at the EAT of the documents which were sent to the EAT after 4pm on the deadline day. If an extension had only been needed in respect of the required documents received that day, it would have granted it. However, the compassion of the EAT could only extend so far. It held that the failure to send the ET1 and ET3 on the deadline day, or sooner than they were sent, was the result of carelessness or lack of sufficient proactive attention to the matter, which did not amount to a good reason or exceptional circumstances. The appeal was accordingly dismissed.
Acetrip demonstrates that in certain cases, the tribunal will be slightly flexible with their deadlines – but only slightly, and only if there are truly exceptional circumstances.
Tribunal deadlines are a serious matter. We recommend to all of our clients that if they receive any documents from the tribunal, they are immediately sent to us for review. This is of course important from a practical perspective – so that if we need to prepare documents or carry out a relevant step on your behalf, we can ensure that deadlines aren’t missed. There are also strategic reasons for knowing when the relevant deadlines are, since in our experience, the timing of e.g. a settlement offer (with regard to the deadlines) might make it more likely to be accepted (or not).
As a business, it is important that all of your staff are aware that anything received from the tribunal should automatically be deemed as “urgent”. It is also worth training any staff who might receive correspondence or telephone calls on behalf of your business (including admin staff) to ensure that any communications from the tribunal or ACAS are immediately forwarded to a senior manager without delay.
For further advice or support, please contact Claire, Rachael or Rebecca in the employment team.