3 things you need to know about extending time limits for employment tribunal claims

3 things you need to know about extending time limits for employment tribunal claims

If you have presented an employment tribunal claim outside of the time limit can a tribunal allow the claim to be heard out of time?

(1)  What are the time limits?

Generally, an employment tribunal claim must be made within 3 months less than 1 day (Time Limit) of the complaining act (eg dismissal or discrimination). However, the Time Limit can be extended by Acas early conciliation by up to 6 weeks provided that this is commenced within the Time Limit.

(2)  What is the test for extending the time limit for dismissal claims?

The time limit for claims of (constructive) unfair dismissal and wrongful dismissal can be extended by an employment tribunal if it decides that it was not reasonably practice for you to have presented the claim in time.

If it was not reasonably practicable to claim within the initial 3 months, the claim must still be presented within a reasonable further period.

The tribunal has the discretion to extend the time for presenting the claim by whatever further period it considers reasonable, but case law suggests that this will be the exception rather than the norm. 

In exercising its discretion, the tribunal will assess whether it was practicable for you to present the complaint earlier, considering the specific circumstances of the case. The factors that may be relevant include:

• the efforts made by you to pursue the claim
• the obstacles or difficulties faced by you eg illness
• misrepresentation by your employer as to the time limit
• advice from unqualified advisers
• whether there were any ongoing processes (such as grievances) that affected your ability to present the claim
• new information coming to light after the time limit has expired that was not reasonable for you to be aware of earlier eg in a redundancy situation
• the merits of the claim may also impact the decision on extension.

If you have presented an employment tribunal claim, you will be expected to make the appropriate enquiries as to the enforcement of your rights to bring a claim, including the relevant time limits.

Technical problems are unlikely to be persuasive. Tribunals will be very critical of the fact that the submission of the claim has been left until the last minute. Furthermore, following an internal process of appeal will not, in itself, be a good reason for an extension of time. You should submit your claim before the time limit runs out, even if the process has not finished.

Unfortunately, a mistake in making a claim late or failing to make appropriate enquiries when you became aware of your right to make a claim will not normally be enough to extend time. 

(3)  What is the test for extending the time limit for discrimination claims?

The time limit for claims of direct and indirect discrimination, discrimination arising from disability, failure to make reasonable adjustments, harassment and victimisation can be extended by an employment tribunal by such period as it considers just and equitable.

In exercising its discretion, the tribunal will assess the fairness to the parties, considering all factors of the case. The factors that may be relevant include:

• the conduct of the parties
• the length of delay
• the reasons for delay eg any ongoing internal processes
• whether the cogency of evidence is likely to be affected by the delay
• whether a fair trial is still possible
• whether your employer has cooperated with requests for information.

In cases where there is more than one act of discrimination and an earlier act or acts of discrimination are out of time, the tribunal will consider whether the earlier conduct relates to the later conduct. If so, the tribunal decides that the conduct extends over a period and will be treated as done at the end of the period ie the date of the last act of discrimination. 

Comment

Extending the time limit for employment tribunal claims is not a paper exercise and will almost certainly result in a preliminary hearing for dismissal cases and discrimination cases, where the last act of discrimination is out of time, to determine this point.