Don’t breathe a sigh of relief yet!
Jackie Denham discusses when an employee can bring a claim outside the statutory time limits.
The majority of claims must be presented within 3 months of the date of the act complained of, but employers should be aware that even if this period has passed it doesn’t necessarily mean they can breathe a sigh of relief. The Tribunal has discretion to allow a claim to be accepted after the original deadline has passed if the claimant can satisfy the relevant test (which varies depending on the basis of the claim). In the case of claims of unfair dismissal, breach of contract and other employment rights claims, a Judge can decide to accept a claim out of time if they are satisfied that:
- it was not reasonably practicable for the complaint to be presented in time; and
- the claim was presented within such further period after the original deadline as the ET considers reasonable.
(N.B. The test for whether discrimination and statutory redundancy claims can be brought out of time is different.)
Following the abolishment of the Tribunal fees regime on 26 July 2017, one of the issues that arose was whether someone who had decided not to bring a claim because they could not afford the fees payable could now issue that claim out of time. A recent case in the EAT has clarified that the requirement to pay a fee could potentially satisfy the test that it was not reasonably practicable for someone to present a claim in time. However, it would very much depend on the facts of the case. In Mr Wray’s case he had access to legal advice through the CAB on 13 July 2017. The deadline for lodging his claim was 18 July 2017, although the advice he received around that was incorrect. He learnt in early August 2017 that the fees regime was no longer in place but did not file his claim until 6 September 2017, also he presented no evidence to suggest that he did not have funds to present his claim in time. Based on these facts the EAT upheld the ET’s decision that Mr Wray had not established that it was not reasonably practicable for him to bring his claim by 18 July 2017 and, furthermore, it was not reasonable for him to delay lodging the claim until September.
Some key learnings from this case are that the Tribunal will take into account the information that the claimant had access to (even if they did not actually access that information). If the claimant relies on incorrect or inadequate advice this does not excuse a failure to bring a claim in time unless it was reasonable for that advice to be incorrect (for example if the employer had provided misleading information as to a material factor of the case). Essentially the onus is on the claimant to prove that it was not practicable for them to bring their claim in time, so an employer should always consider if it has grounds to challenge a claim that is lodged late.