Don’t panic! If you have missed your time limit for presenting your unfair dismissal claim to the Employment Tribunal, in most cases a correct application of section 111(2) will secure your chances of extending the time limit at the Employment Tribunal. In this series, we present cases that were well-founded and fulfilled the "No Reasonably Practicable Test."
Section 111(2)
Section 111(2) of the Employment Rights Act 1996 (ERA 1996) addresses the time limit for presenting an unfair dismissal claim to an employment tribunal. The section stipulates that a claim must be presented within three months of the effective date of termination, unless it was not reasonably practicable for the claim to be presented within that period. In such cases, the tribunal may allow a claim to be presented outside the three-month period if it is satisfied that it was not reasonably practicable for the claim to be presented in time and that it was presented within a reasonable period thereafter.
The interpretation of "not reasonably practicable" is strict, and the tribunal must be convinced that there was a genuine reason preventing the timely submission of the claim. This interpretation does not favour a liberal construction in favour of the employee, as noted by Cavanagh J in the EAT, who emphasised that the test is stringent and does not align with the "just and equitable" extension found in other statutory contexts. Therefore, the tribunal should not attempt to give the "not reasonably practicable" test a liberal construction in favour of the claimant.
Extending time limits employment tribunal - Marks & Spencer plc v Williams-Ryan
Employment — Unfair dismissal — Claim — Time limit — Employee unsuccessfully pursuing internal appeal before presenting complaint — Complaint out of time — Whether “reasonably practicable” for complaint to be presented in time — Employment Rights Act 1996, s. 111(2)
This is one of the cases where the "not reasonably practicable test" has been fulfilled. It is particularly useful reading for litigants who missed the time limit due to internal grievances made either directly with the employer or via ACAS.
Key elements of this case are prolonged internal grievances causing delays and missing the time limit, and some form of misadvice by the Citizens Advice Bureau. Remember that the mere fact of a prolonged grievance process on its own would more likely not meet the "not reasonably practicable" test, but along with the misadvice, it proved to be fulfilling. Similarly, in the case of Mr. Brophy, the claims of misadvice were substantiated with mental impairment [dyslexia]. This case can be accessed here.
Extending time limits employment tribunal - Marks & Spencer plc v Williams-Ryan
Background of Mrs. Williams-Ryan's case:
Mrs Williams-Ryan, a part-time sales assistant, was summarily dismissed for gross misconduct on 17 April 2003 following a disciplinary hearing into an incident on the shop floor. At the earliest opportunity she telephoned the Citizens Advice Bureau. In a brief conversation she was advised to exhaust the employer's internal appeal procedure, but not told of her right to complain to an employment tribunal.
On 24 April a letter of dismissal was sent informing her of the internal appeal procedure and of her right to complain to an employment tribunal, for which she would need independent advice.
The information she received from the employer did not mention the time limit for complaints to the employment tribunal. She proceeded with the internal appeals procedure, which concluded by letter of 31 July, received several days later, confirming her dismissal.
On 20 June she had obtained a blank form and information concerning a complaint to an employment tribunal, but she did not find time to study the documents due to the pressure of a teacher training course. The three-month time limit for presenting her complaint to the employment tribunal under section 111(2) of the Employment Rights Act 1996 1 expired on 16 July.
The tribunal received her complaint of unfair dismissal on 15 August and concluded that it had jurisdiction to hear the complaint because it had not been reasonably practicable for her to present it before the time limit expired and that it had been presented within a reasonable time thereafter. The Employment Appeal Tribunal dismissed the employer's appeal.
Important things to note is the EDT - on 17 April 2003 Mrs. Williams-Ryan was informed of her dismissal, although the letter confirming the dismissal was sent on 24 April 2003 it is not in such circumstances the EDT. More about EDT can be found here. Secondly, the internal grievance was not conducted via ACAS which would lock the clock in these days. Accordingly, Mrs. Williams-Ryan’s time limit was 16 July 2003; she, however, filed the Employment Tribunal claim on 15 August 2003, some 30 days later. The Employment Tribunal received the claim and in the December hearing found, based on the circumstances, that the ‘’not reasonably practicable test’’ has been fulfilled.
The employer ‘’Marks & Spencer plc’’ appealed this decision
On April 17, 2003, Marks & Spencer plc dealt with a tribunal decision on December 17, 2003, which decided it could hear an employee's late complaint because it wasn't practical to file within the three-month limit set by the Employment Rights Act 1996. The company's appeal to the Employment Appeal Tribunal was shot down on September 10, 2004. They got the green light for another appeal on December 10, 2004, thanks to Lloyd J. The company argued that: (1) The employee could have filed on time; (2) The legal principles were used incorrectly, especially about the employee needing to find out about time limits and that advisor mistakes were the employee's problem; (3) The tribunal shouldn't have looked at how the company handled the internal appeal and put the burden on the company; (4) The decision didn't make sense since the employee had all the forms and info needed; (5) They misunderstood the London International College Ltd v Sen case, which said talking to a solicitor wasn't a good excuse for filing late; (6) They got the second part of the test wrong.
On 19 April 2005 the Appeal was heard by judges Latham and Keene LJJ that dismissed the employer's case.
Judge Lathan LJ added the following comments:
[Simplified comments]
''Let's make it clear that this isn't a situation where the employee was told by the Citizens Advice Bureau to wait for the internal appeal results before filing a complaint with an employment tribunal, even though the Employment Appeal Tribunal suggested otherwise. According to the employment tribunal's detailed reasons, during a brief phone chat with someone from the Citizens Advice Bureau, the employee doesn't recall any discussion about going to an employment tribunal. We also don't know what questions were asked during that call. So, this isn't a case of bad advice from a professional adviser, nor does it seem like the employee could blame the adviser for any issues.''
''What actually happened is that the employee got a letter from the employer on April 24, 2003, about their internal appeal process. At the end, it mentioned she might have the right to go to an employment tribunal. However, there was no mention of any deadlines for making a tribunal complaint, either in that letter or in any following information from the employer. In fact, the employer's guide to the internal appeal process didn't mention any time limits on unfair dismissal claims. As Lord Phillips of Worth Matravers MR noted, the way the last parts were laid out could lead someone to think they should finish the internal appeals before going to a tribunal.''
''Given these circumstances, the tribunal's decision that the employer's advice was lacking and misleading seems fair to me. This is important when considering whether the employee reasonably believed she should wait for the internal appeal results before filing a tribunal complaint. Although the employment tribunal didn't explicitly say this belief was reasonable, both I and Lord Phillips of Worth Matravers MR think it's implied in the detailed reasons, especially in the last four paragraphs.''
''So, looking at it differently from the Employment Appeal Tribunal, I conclude that the employment tribunal stuck to the usual legal principles here. I'd also reject this appeal.''
Appeal is dismissed.
Important note:
These days an employee cannot successfully assert that they were unaware of their right to bring an employment tribunal claim solely because the employer did not inform them of this right in the detailed dismissal grounds under section 92 of the Employment Rights Act 1996 (ERA 1996). The right to a written statement of reasons for dismissal under section 92 does not include an obligation for the employer to inform the employee about the time limits or the right to bring a claim to an employment tribunal.
Section 92 of the Employment Rights Act 1996 (ERA 1996)
Section 92 of the Employment Rights Act 1996 (ERA 1996) provides that a dismissed employee has the right to request a written statement from their employer detailing the reasons for their dismissal. This right is applicable to employees who have been continuously employed for a period of two years or more. The written statement must be provided within 14 days of the request and should clearly outline the reasons for the dismissal. This provision ensures that employees are informed of the grounds for their termination, which can be crucial for understanding their rights and for any potential claims of unfair dismissal.
The facts
The employee was employed as a part-time sales assistant by the appellant employer in 1997. On 17 April 2003 she was summarily dismissed on the ground of gross misconduct following a disciplinary hearing in relation to an incident on the shop floor in which she had sworn at another member of staff.
The employee contends that her dismissal was unfair, having regard to the circumstances of the incident, the conduct of the disciplinary hearing and her previously unblemished disciplinary record. It is her case that summary dismissal was a harsh and disproportionate response to the misconduct at issue.
On the first working day after her dismissal, 19 April 2003, the employee telephoned the Citizens Advice Bureau for advice. In a short five-minute conversation she was advised that she should exhaust the employer's internal appeal procedure. She was not told that she had a right to complain to an employment tribunal, let alone that there was a time limit for presenting such a complaint.
The letter confirming her dismissal was sent on 24 April 2003. It explained that an appeal must be brought within five days of receipt of the letter and referred to the separate right the employee might have to have her case considered by an employment tribunal, in respect of which she would need to seek external advice.
On 30 April 2003 the employee presented her detailed grounds of appeal to the employer. She concluded the letter by indicating that a copy would be sent to an employment tribunal and to the Citizens Advice Bureau.
The hearing took place on 16 June 2003. The guide to the employer's internal appeal procedure indicated that “a written report detailing the outcome of the appeal hearing” would be sent to her home, “ideally within 14 days” of the appeal hearing.
On 20 June 2003 the employee obtained a blank form and brochure in relation to presenting a claim to the employment tribunal from a former colleague, but she did not at this stage study these documents. This was because she was under considerable pressure in relation to a teacher training course that she was pursuing at Roehampton College, in circumstances where she had failed her coursework and postponed her teaching practice as a result of the disruption caused by her dismissal. She was allowed to try to make up for these deficiencies both in June and July, but was ultimately unsuccessful. During this period the three-month time limit expired on 16 July 2003.
The employee was informed of the dismissal of her internal appeal by a letter dated 31 July 2003, which took several days to reach her. She indicated in her acknowledgement of the letter, on 6 August 2003, that she would now pursue a complaint to the employment tribunal. Her originating application was received by the employment tribunal on 15 August. By this stage she was aware that the time limit had expired, and in her covering letter she explained that she had first appealed through the employer's internal appeal procedure and believed this had been deliberately slowed down to ensure that she missed the deadline. That is not an allegation which was pursued before the Employment Appeal Tribunal or this court.
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