Unfair Dismissal Claims - Extension of Time Limits

There are generally strict time limits that apply when presenting a claim for unfair dismissal to the Employment Tribunal (ET). Normally, a claim must be lodged before the end of a three-month period beginning with the effective date of termination. However, where the ET judges that it was not ‘reasonably practicable’ for the complaint to be presented in time, the deadline can be extended.

The Employment Appeal Tribunal (EAT) has considered (Ashcroft v Haberdashers’ Aske’s Boys’ School) whether it was reasonably practicable for an employee, who was dismissed for gross misconduct and who was waiting for the outcome of an internal appeal, to present a claim within time when he received notice of the dismissal of his appeal just six hours before the three-month time limit expired. It was accepted that the delay was not the fault of the employer or the employee in this case.

The ET rejected Mr Ashcroft’s unfair dismissal claim as being out of time. Although Regulation 15(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 does allow for a three-month extension to the normal time limit for presenting a complaint if, when the normal time limit expired, the claimant believed that dismissal or disciplinary procedures were ongoing regarding the complaint, strictly speaking Mr Ashcroft had been notified of the result of his appeal when the normal time limit expired. At that time, he could not therefore have had a reasonable belief that any disciplinary proceedings were still ongoing. Furthermore, the long standing rule, following the judgment of the Court of Appeal in Palmer and Saunders v Southend-on-Sea Borough Council (Palmer), was that waiting for the result of an internal appeal does not extend the time limit for a claim to the ET. A claimant should present a claim beforehand in order to protect their position should they wish to proceed with a claim once the outcome of the appeal is known.

Mr Ashcroft appealed against this decision.

The EAT held that the Employment Act 2002 (Dispute Resolution) Regulations 2004 are intended to ‘encourage and facilitate a claimant not to issue proceedings’ and ‘created a new scenario’ which overtakes the position established in Palmer. If it had been intended that Palmer should continue to be binding – i.e. that the claimant should issue proceedings before learning the outcome of an internal appeal – there would have been no need for Regulation 15(2) at all.

Burton J stated that, “Regulation 15(2) appears to me to be plainly predicated upon the assumption that there will not be an application put in to the employment tribunal prior to the expiry of the appeal period.” It was his view that Regulation 15 effectively repealed Palmer.

The EAT held that the ET should have concluded that it was not reasonably practicable for Mr Ashcroft to have presented his claim as up until six hours before the normal time limit expired he had the anticipated protection afforded by Regulation 15 (2) and the express encouragement of the legislation not to begin proceedings pending the outcome of the internal appeal.

The appeal was therefore allowed and the matter remitted to the ET to decide whether there should be a further extension.