Extending time to bring an unfair dismissal claim

A claim for unfair dismissal must be brought within three months of the EDT (see Qualifying for unfair dismissal rights, above). The tribunal has a discretion to extend the time limit for submitting a claim if it was not reasonably practicable to present the claim in time (section 111(2) ERA 96). However, this test is strictly applied and in practice, the discretion is rarely exercised in the employee’s favour.

Failure of machinery, such as printers or faxes, will not be enough to justify an extension. In one EAT ruling, the claim arrived just 11 minutes late because of problems with the claimant’s printer, but the EAT held that this was a relatively common occurrence and did not mean it was not reasonably practicable to comply with the time limit (Fishley v Working Men’s College EAT/0485/04). In Horwood v Lincolnshire County Council ([2012] UKEAT/0462/11/RN), the claim would have been in time if Ms Horwood’s adviser had used email or fax instead of the post. The EAT said this made it impossible to argue that it was not reasonably practicable to submit the claim in time.

A claimant who has not received an acknowledgement of their claim, or who submits it very close to the deadline, should check with the tribunal office that it has been received, making a careful note of the time and date of your call and the person spoken to.

In general, ignorance of the time limit is not a valid reason for extending it. If a claim is late because of wrong legal advice, or through not being advised of the time limit by a solicitor, this will not normally be a sufficient reason to extend time (Dedman v British Building and Engineering Appliances [1973] IRLR 379). It makes no difference that the advice was given by solicitors in a free consultation (T Mobile (UK) Limited v Singleton [2011] UKEAT/0410/10). If advice is negligent, even if it is free, the claimant’s remedy is against the solicitors (who have insurance).

In Opare-Addo v Wandsworth BC (EAT/0740/01), the fact that the claimant was represented by her union was one reason why the tribunal thought it had been reasonably practicable for her to lodge her claim in time, so her request for an extension was refused.

The Court of Appeal allowed an extension of time where the claimant sought advice from a Citizens Advice Bureau who failed to tell her about the time limit (Marks & Spencer v Williams-Ryan ([2005] IRLR 562)), but in Remploy Limited v Brain (UKEAT/0465/10), the judge commented that since there is now “widespread public knowledge of unfair dismissal rights”, it is increasingly difficult for employees to argue successfully that their ignorance of the time limit is reasonable.

In Remploy Limited v Brain (UKEAT/0465/10), informal and mistaken advice over a cup of coffee from a “friend-of-a-friend” who was a solicitor but not an employment specialist, did not prevent Ms Brain arguing it was not reasonably practicable to meet the time limit.

A claimant will not be allowed to argue that because an internal appeal was on-going, it was not reasonably practicable to bring an unfair dismissal claim. Even if the appeal process has not been exhausted, the claim must be brought within the three-month deadline.

Once a claimant who has missed the deadline becomes aware of the correct time period, they must act very quickly indeed to bring the claim. Otherwise, the tribunal is almost certain to refuse to extend time, regardless of the reason for missing the deadline.

The above case examples illustrate the unpredictability of applications to extend time to bring claims for unfair dismissal. In practice, the three-month deadline should be treated as if it is set in stone. Only very rarely will it be extended and It is vital that claims are submitted well inside the correct timeframe.

In De Souza v Manpower UK Limited ([2012] UKEAT/0234/12/LA), a claimant was refused permission to continue with claims of unfair dismissal and discrimination because her ET1 Claim Form was filed one day late. The claimant was dismissed on 21 May 2009 and her Claim Form was presented on 21 August 2009.

The three month time limit begins with the date of dismissal. In other words, the date of dismissal is the first day of the three month period. The correct way to calculate the three month period is to take the day immediately before the dismissal date and to go forwards by three months. Thus, since Ms de Souza was dismissed on 21 May, she should have filed the claim at the latest by 20 August. In practice, it is never a good idea to leave filing a tribunal claim until the last moment. It is also crucial to be sure when the date of dismissal is.

Even if a claimant succeeds in persuading the tribunal to extend time, there will be wasted costs and time and considerable anxiety.

From Summer 2013, claimants must build in time to organise payment of an issue fee to the tribunal (See Chapter 1).