By James Baker, solicitor, Marfarlanes
Employees have three months to claim unfair dismissal, and this deadline has
been interpreted very strictly. However, some cases are heard that have been
lodged ‘out of time’ if it can be proved that it is reasonably practicable to
do so.
Section 111(2)(b) of the Employment Rights Act 1996 says a complaint can be
heard if it was submitted ‘within such further period as the Tribunal considers
reasonable in a case where it is satisfied that it was not reasonably
practicable for the complaint to be presented before the end of that period of
three months’.
But what exactly is considered ‘reasonably practicable’?
In Palmer v Southend on Sea Borough Council [1984] 1 All ER 945, the
employment tribunal stated that an applicant has to satisfy the tribunal that
he did not know his rights during the whole period in question, and that there
was no reason why he should have made enquiries during that period. Palmer set
out relevant factors:
– When did the employee know that he was able to make a claim?
– Was there any misrepresentation by the employer as to the dismissal or
timing?
– Was the employee being advised at any material time? If so, by whom? What
was the extent of the adviser’s knowledge of the facts?
– Was there any substantial fault on the part of the employee or his
adviser, leading to his failure to comply with the time limit?
The recent case of Mrs Defer-Wyatt v Mr Brenig-Williams and Others at the
Employment Appeal Tribunal (0270/03) showed a more lenient approach by the
tribunal.
Defer-Wyatt wrote a letter of resignation to her employer dated 26 March
2002. The employer replied by a letter dated 28 March, accepting the
resignation. The P45 showed her leaving date as 28 March 2002. On 27 June 2002,
she presented her originating application to the tribunal, showing her dates of
employment as 1 June 1978 to 28 March 2002. The employer argued that she was
one day outside of the time limit.
The tribunal found that the complaint was presented out of time, but the EAT
overturned the decision. It found genuine confusion over the date of
termination of employment. The employer did not make clear that the resignation
was accepted on 26 March, the day that it was submitted. The date of the P45
only increased the confusion. The tribunal said that Defer-Wyatt was entitled
to "reasonably assumeÉ that her letter had been received on 28 March
without further enquiryÉ that assumption was itself mistaken, but one
reasonably held by the appellant". Accordingly it was not reasonably
practicable to submit the claim in time.
Despite the need for certainty, this was a fair decision. Defer-Wyatt
convinced the tribunal that she had been legitimately confused, and that this
was not the fault of her or her adviser – a situation differing greatly from
the applicant who has done nothing until the last minute. Even so, tribunals
have refused to strike out last-minute claims: employees have three months, and
should not be criticised for choosing not to present their claims earlier.
At least this doesn’t overturn the decision held in Sealy v Consignia [2002]
EWCA CIV 878, where the tribunal rejected Consignia’s (formerly the Post
Office) attempt to have a claim by a former postman struck out on the basis
that postal delays meant his application was received out of time.
Tips for employers responding to originating applications
– Respondents have 21 days from receipt of a copy of the originating
application (OA) to file a Notice of Appearance (NoA).
– This does not include the date of receipt, so if the OA was received on 1
August, you would have until 22 August to submit the NoA.
– Ring the tribunal on the day of receipt to check when it expects the NoA –
some will give you a date to work to.
– Work out who you need to speak to gather the facts. Do you need to make
special arrangements to get hold of them?
– If you can’t gather the facts in time, apply to the tribunal for an
extension.
– If you do not receive a response in time, lodge a ‘holding defence’
denying the allegations, and stating that you will respond with fuller particulars
(you may need leave to amend your defence, so this is not the best option).
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– File the NoA by fax, keep a copy of the transmission report and check that
it has been sent to the right number.
– Aim to submit the NoA a couple of days before the deadline, and check to
make sure it has been received.
