Unfair Dismissal Claims - A Minute Late is Too Late

An employee must bring an unfair dismissal claim within three months of his or her effective date of termination and the time limits for presenting claims to the Tribunals Service are normally strictly enforced. If the deadline is missed, the Employment Rights Act 1996 states that the claim will only be accepted if it is presented ‘within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months’.

In Beasley v National Grid Electricity Transmissions, the Court of Appeal has confirmed the decision of the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) that Mr Beasley’s claim for unfair dismissal was presented outside the three-month period because the claim form arrived by email at the Tribunals Service 88 seconds after the deadline. Mr Beasley contended that the ET had not taken material considerations into account when reaching its decision and even if it had, its reasoning was defective because the judgment did not show that it had done so and he therefore did not know why he had lost his claim.

As regards the steps taken by Mr Beasley to present his claim on time, the evidence before the ET was that when he sent the claim form at 23:44 on 6 May 2006, he misread the email address to which it had to be sent. The undelivered email was returned to him at 23:45. At 23:57 he sent a test email to the correct address before sending the actual claim form at midnight. The form was not received by the Tribunals Service until 88 seconds after midnight. The EAT held that the ET was entitled to make the finding it had, based on the evidence that Mr Beasley could have sent the claim form at 23:57 instead of the test email.

The Court of Appeal found that although the reasons given by the ET for its decision could have been more detailed, it had considered Mr Beasley’s confusion regarding the time limit and the reasons were sufficient for him to know why he had lost. It had heard evidence that although he had been told that submitting a grievance would extend the time limit by 28 days, he was given specific advice by his solicitor, the day before the time limit expired, that he should get his claim in immediately. Although he did have a reduced window of opportunity in which to lodge his claim, and had experienced difficulty with the format used and in reading the email address, in the Court of Appeal’s view it was open to the ET to conclude that it was reasonably practicable for him to have presented his claim in the time available. The Court referred to the earlier case of Fishley v Working Mens College in which the EAT referred to computers etc. as ‘temperamental creatures’ and said that if an application is left to the very last minute, ‘then a temporary impediment, such as the breakdown of a piece of office equipment or something of that kind is one of the risks of life which has to be taken’.

The Court recognised that this was a harsh decision but the relevant legislation is strictly worded and does impose a harsh regime.