Extending time to bring an unfair dismissal claim

As of 6 May 2014, the first step in a claim for unfair dismissal is to apply to Acas for early conciliation. This step must be taken within three months of the EDT or else the claim will be out of time. The new Acas early conciliation procedure has important implications for time limits, explained in Chapter 1.

It is very important to keep the evidence of the date and time that the claim was sent to Acas and to keep a copy of the Form and any receipt. You will need this evidence if the employer tries to argue that you have missed the three-month deadline for your claim. You should resend the claim to Acas if no receipt arrives within 24 hours.

Although 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 the discretion is rarely exercised in the employee’s favour.

The rules for issuing claims have changed and are explained in Chapter 1. In particular, claimants need to allow enough time to pay the tribunal fee or complete an application for fee remission, including the time needed to collect up the correct original supporting evidence of means. A claim issued without the correct tribunal fee or completed remission application will be rejected by the tribunal, but time will continue to run.

In general, ignorance of a time limit is not a valid reason for extending time. The fact that a claim is late because of wrong legal advice, or through not being advised of the time limit by a solicitor, is not usually accepted as a valid excuse by the tribunal (Dedman v British Building and Engineering Appliances [1973] IRLR 379). This is the case even if the solicitor was not expressly instructed to advise on bringing 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 claimants whose solicitors have been negligent should claim against their solicitors, who are required to have insurance.

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 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). But in Remploy Limited v Brain [2011] UKEAT 0465/10/0203, the EAT said that in view of ”widespread public knowledge of unfair dismissal rights” — including the availability of free web-based resources, it is increasingly difficult for claimants to persuade tribunals that their ignorance of the time limit is reasonable.

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

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 regardless of the reason for missing the original deadline.

In practice, the three-month deadline should be approached as if cast in stone. Only very rarely will it be extended and it is difficult to predict when this will happen. Missing the deadline also means that even if an extension is granted, the claimant starts off on the back foot, and incurs the expense of extra tribunal hearings that could have been avoided . It is vital that claims are sent 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.