The final countdown: the tribunal threat even if time limits have run out

A generous approach to time limits in tribunal cases has opened the door for more claims. Makbool Javaid, partner at law firm DLA Piper Rudnick Gray Cary UK, explains how you might get caught out.

Previous case law concerning time limits for presenting unfair dismissal claims have reinforced a long-standing principle that limits must be strictly enforced and even though a claimant may have received incorrect advice from a professional adviser, this was not a valid excuse for failing to present a claim in time.

But the courts have struck a blow for employees, which means companies may not be safe from tribunal action, even if a claim is brought outside allocated time limits.

The Court of Appeal, in Marks & Spencer Plc v Williams-Ryan has upheld the “generous” decisions of an employment tribunal and the Employment Appeal Tribunal (EAT) to allow Williams-Ryan to present her unfair dismissal claim one month out-of-time, even though she had sought advice from the Citizens Advice Bureau and a letter from her employer had advised her of her right to make a complaint to an employment tribunal.

After being dismissed for gross misconduct, Williams-Ryan contacted the Citizens Advice Bureau who advised her to exhaust the internal appeals procedure, but did not tell her of her right to make a complaint to an employment tribunal.

Marks & Spencer sent Williams-Ryan a letter confirming her dismissal, outlining the right of appeal and informing of her right to lodge a complaint to a tribunal, but there was no mention of a three-month time limit.

The tribunal found that Williams-Ryan thought she had to wait for the decision of the internal appeal procedure before bringing a claim. Therefore, it was not reasonably practicable for her to have presented her complaint within the three-month time limit and she would be allowed to proceed to a full merits hearing. Marks & Spencer appealed, but the EAT upheld the tribunal’s decision.

The Court of Appeal held that while decision was “generous”, it was not outside the scope of conclusions that could be reached.

It went on to rule that the time limit provisions should be “interpreted liberally in favour of employees” particularly where, as in this case, the advice given to Williams-Ryan was misleading and insufficient.

While the letter from Marks & Spencer was no doubt intended to be helpful, there was no reference to a time limit for presenting a claim. It was therefore easy to understand how Williams-Ryan reached the conclusion that a claim should not be lodged until the appeal procedure had been concluded.

The clear lesson for employers is that where mention is made of the right to present an unfair dismissal claim to an employment tribunal, this should be accompanied by a statement that such a claim must be lodged before the end of the period of three months beginning with the effective date of termination.

It should also be clearly pointed out that this statutory right is not dependent upon the ex-employee exhausting the appeals procedure first – they are two distinctly separate rights.

This case involved a dismissal which took place before the new statutory dispute resolution procedures came into force in October 2004.

Now, if an employee wants to bring a claim in a case where a Standard Disciplinary or Dismissal Procedure or a Modified Dismissal Procedure applies, the normal time limit for bringing that claim can be extended by three months.

This will happen if the employee had reasonable grounds to believe that, at the expiry of the normal time limit, the relevant procedure was still being followed, eg the appeal had not finished. But if the procedure has finished, this extension rule will not apply.

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