26 MAY 2015
Tribunal claims - running out of time?
Associate, Veale Wasbrough Vizards
Two recent cases have highlighted the importance of presenting a claim within time, unless there are compelling grounds to show that this is not practicable.
In particular, a claimant may be permitted to present a claim out of time it it was not practicable to present it within the time limit for a reason arising from disability.
Sterling v United Learning Trust
In Sterling v United Learning Trust, a claim was rejected for containing an incorrect early conciliation number, with the result being that the Claimant was then out of time to present an amended claim form including the correct number.
After being dismissed by United Learning Trust, Mrs Sterling submitted a claim form four days before the expiry of the limitation period but missed some digits from the ACAS early conciliation (EC) number. The form was returned to her but addressed incorrectly, causing Mrs Sterling to then re-submit the claim out of time. The Employment Tribunal (ET) held that it did not have jurisdiction to hear the claim and it was dismissed.
Mrs Sterling appealed to the Employment Appeal Tribunal (EAT), however the appeal was rejected. The EAT highlighted that it is implicit in Rule 10 (which requires the EC number to be included on a claim form) that the number provided is correct and a tribunal is entitled to reject a claim if it is not. In addition, Mrs Sterling had failed to raise any arguments to the ET that it was not reasonably practicable for her to present her claim in time and it was therefore entitled to conclude that she was able to present her claim in time.
Higgins v Home Office and another
In a separate case, the EAT has held that an employment tribunal did not have proper grounds to reject a claim which had been lodged six years out of time.
In Higgins v Home Office and another, Ms Higgins had submitted her claim form more than six years late. She had ticked the box claiming constructive unfair dismissal and indicated the compensation that she sought which included re-engagement and financial compensation to her mother. The claim was rejected by the ET as an abuse of process because:
i) it was brought outside of time limits
ii) the remedies sought did not appear to be those the ET could award. and
iii) Ms Higgins did not appear to be claiming unfair dismissal.
Ms Higgins applied to have her claim reconsidered and submitted evidence from her consultant psychiatrist that she had not been well enough over the last six years to pursue a claim. The EAT found that the ET had been too drastic in its decision to reject the claim without having any hearing or considering submissions on whether it had been practicable for Ms Higgins to present her claim in time. It held that cases should only be rejected in the most plain and obvious of circumstances. Any borderline cases should not be dismissed so readily. The words 'not practicable' in relation to the Claimant's ability to present a claim within three months of dismissal should, according to the EAT, be given a liberal interpretation in favour of the employee. Ms Higgins' claim form contained sufficient information for the ET to be aware that she suffered from significant mental illness, and therefore it was wrong to reject the claim without seeking an explanation as to why it had been filed within the correct time limit. Just because the claim was significantly late did not automatically constitute an abuse of process. The ET should have considered whether it had been practicable for Ms Higgins to present the claim in time and considered medical evidence.
These two cases offer contrasting messages about when a claim will be allowed out of time. Sterling v United Learning Trust is a cautionary tale about ensuring strict compliance with the requirements of a claim form and confirms that an employment tribunal may be strict in its application of the rules in relation to early conciliation and completion of the mandatory information on the claim form.
While Higgins serves to demonstrate that there should only be an order rejecting a claim form as an abuse of process in the most 'plain and obvious' cases. Where the claim form hints at a potential reason why it was not practicable for the claim to be presented sooner, then a tribunal must seek representations from the claimant before dismissing the claim. Employers should be aware that even after a substantial delay, an employee may still be permitted to proceed with a claim if they have a compelling reason why it was not practicable to present the claim within the normal time limit.