Extending time to bring an unfair dismissal claim

The tribunal has a discretion to extend the time limit for submitting a claim for unfair dismissal if it was not reasonably practicable to present the claim in time (section 111(2) ERA 96). This test is strictly applied and extensions of time are rare.

Prospective claimants must also allow enough time to organise payment of the tribunal fee or to collect together the documents they need to apply for fee remission. Only certain documents are accepted for the financial means test (see page 413).

In general, ignorance of a time limit is not a valid reason for extending time.

In a claim for unfair dismissal, the fact that a claim is late because of wrong or incomplete legal advice by a solicitor is not regarded by the tribunal as a valid excuse (Dedman v British Building and Engineering Appliances [1973] IRLR 379). This is the case even if the solicitor was not asked to advise on whether the claimant should bring a tribunal claim, and even if the advice was given in a free consultation (T Mobile (UK) Limited v Singleton [2011] UKEAT/0410/10). The tribunal’s view is that where solicitors have been negligent, claimants should pursue their solicitors, who must have insurance to cover themselves against negligent mistakes, such as missing time limits. The position is less straightforward in claims for discrimination, see page 200.

In Opare-Addo v Wandsworth BC EAT/0740/01, the fact that a claimant was represented by her union was one reason why the tribunal thought she should have lodged her unfair dismissal claim in time. Her request for an extension was refused.

The Court of Appeal allowed an extension of time where a 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). However, in Remploy Limited v Brain [2011] UKEAT 0465/10/0203, the EAT said that ”widespread public knowledge of unfair dismissal rights”, including the availability of free web-based resources, means that ignorance of time limits is increasingly less likely to be regarded as reasonable.

The fact that an internal appeal is still ongoing is no excuse for missing the deadline. Time does not stop running because an appeal has not been decided.

In Sterling v United Learning Trust [2015] UKEAT/0439/14/DM, a claimant was refused an extension of time to claim unfair dismissal when she missed the deadline after her original Form ET1 was rejected because she got two digits of her Acas Early Conciliation Certificate number wrong.

A claimant who realises they have missed a deadline must act urgently to issue their claim as quickly as possible. Otherwise, the tribunal is likely to refuse to extend time, irrespective of the reason for missing the original deadline.

In practice, the three-month deadline should be approached as if it is cast in stone. Only very rarely will it be extended and it is difficult to predict when this will happen. Even if an extension is granted, the claimant starts off on the back foot, with the expense of extra tribunal hearings. It is vital that the Acas Early Conciliation Notification Form — the first step in any claim — is submitted to Acas well inside the time limit.

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: