Strict approach adopted by Employment Tribunal to a claim brought 21 weeks late

The Claimant, Ms S O’Brien, argued that the reason for her dismissal, from Holmes & Hills Solicitors, was due to informing them that she was required to stay away from the workplace as she was advised to self-isolate.

To bring a claim for unfair dismissal, an employee is required to have at least two years’ service. However, as Ms O’Brien was bringing a claim under sections 44 and 100 of Employment Rights Act 1996, on the basis that she was unfairly dismissed on health and safety grounds, there is no qualifying period of service.

Ms O’Brien’s effective date of termination was 17 March 2020 and she had obtained an early conciliation certification certificate from ACAS on 14 April 2020.

The Importance of Time Limitations 

Under S111 of the Employment Rights Act 1996, a complaint must be filed within three months of dismissal. However as Ms O’Brien had used the ACAS conciliation service, the time limit for bringing a claim was extended to 30 June 2020. Despite the extended deadline, Ms O’Brien did not present her claim to the employment tribunal until 24 November 2020. She was therefore 21 weeks late in bringing her claim.

The Employment Tribunal considered if it was reasonably practicable for Ms O’Brien to bring her claim on time and if so, if her claim was presented within a reasonable time after the time limit had expired.

The Defence Argument 

Ms O’Brien informed the Employment Tribunal of her difficult personal circumstances including her father-in-law sadly passing away in March 2020, caring for her daughter with autism and caring for her granddaughter. She explained to the Tribunal that the COVID-19 lockdown had left her exhausted and distracted that was exacerbated by the problems she was experiencing in her personal life. She explained she had hoped her former employer would re-consider her dismissal and she had attempted to contact several Solicitors who simply stated as she had not been employed for two years, she did not have a claim. Ms O’Brien spoke to one Solicitor who explained she may have a claim for unfair dismissal on health and safety grounds, but Ms O’Brien was unable to afford the fees on account.

The Employment Tribunal Decision

The Employment Tribunal concluded that this was not a case where Ms O’Brien was incapable of bringing a claim due to ill health and despite having a number of pressing personal issues, they concluded she was reasonably capable of bringing the claim within the time limit.

The Employment Tribunal also found that she was not ignorant of the time limits for bringing a claim to the Employment Tribunal and it was not a reasonable ignorance for Ms O’Brien to have that she was not aware that she could bring a claim before the Employment Tribunal herself without the assistance of a Solicitor.

This recent decision highlights the strict approach the Employment Tribunal will take when considering if an individual should be entitled to bring an Employment Tribunal claim out of time. Care should be taken to ensure that a claim is issued within the time limit and this case reinforces the approach taken by the Employment Tribunal, that it will usually only consider ill-health as being a factor that would prevent an employee from bringing a claim on time, even where there is extenuating personal circumstances.

If ill-health reasons are to be advanced, the Tribunal will scrutinise matters such as the severity of the illness and whether its effect would have prevented the Claimant from lodging the claim. It is also likely to require medical evidence in support of that reason.

Richard Benny – Employment Law Consultant 

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With restrictions being lifted in respect of the pandemic, courts and tribunals are steadily moving back to business as usual with more in person hearings. Please contact rhw’s employment law and dispute resolution team for experienced legal advice.   01483 302000