Employment claim out of time

An aggrieved employee can make a claim to an Employment Tribunal (ET) if they think that their employer has treated them unfairly. This can be for such things as unfair dismissal, discrimination or unfair deductions from pay. An employee usually has to make their claim to the ET within 3 months of their employment ending or the problem occurring.  This second point in time can sometimes be difficult to identify and mistakes are often made. This means that employees run the risk of missing the deadline.

Prior to making a claim, the employee must inform the Advisory, Conciliation and Arbitration Service (ACAS) who will provide a free service to try to settle the dispute without going to the ET.

It is possible to make a claim for the 3-month deadline to the ET to be extended and a recent Court of Appeal case considered this point.

An employee worked for a Health Board from 2007. She was away from work for 18 months due to a depressive illness after which time, her employer dismissed her. The employee was disabled under the Equality Act 2010 (the 2010 Act).  She brought an ET claim but her employer resisted it arguing that it was out of time.  The ET allowed her claim to be heard out of time on the basis that it was ‘just and equitable’ to do so under section 123 of the 2010 Act. The employer appealed and case went to the Court of Appeal.

The Court upheld the ET’s decision and said that 'Parliament has chosen to give the employment tribunal the widest possible discretion' when drafting section 123 of the 2010 Act. There is no specific list of factors that the ET have to take into account when considering an application to hear a case out of time.

The case is a reminder of the importance to an employee of ensuring that they make an application to the ET in time. Whilst the employee was ultimately successful in this case in terms of being heard out of time, the entire process must have proved to be very stressful.

If you want to ensure that your employment case will be brought in time, or you have missed the time limit but are considering making an application for an extension, taking specialist legal advice can increase your chances of success.

To discuss this or any other employment related issues, contact us.

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