In the recent case of Cygnet Behavioural Health Ltd V Britton 2022, the Employment Tribunal has reinforced the legal tests applied when considering whether a claim which had not been submitted on time, should be allowed to proceed.
If you have had the misfortune of being involved in an Employment Tribunal claim you will know that time limits are very tight, and while there can be some leverage to submit a claim form or a defence document out of time, making such applications can be a painful process!
By way of brief recap, the document used to submit a claim to the Employment Tribunal is called an ET1 form. Before submitting a claim, the ACAS Early Conciliation process must be utilised. Claims must be submitted within 3 months less one day of the date of dismissal, or the act of discrimination complained of; with this time frame being extended by any time spent in ACAS Early Conciliation. This means that the ACAS Early Conciliation process must be triggered with 3 months less a day of the dismissal or acts of discrimination complained of. An Employee does not have to terminate their employment to bring a claim for discrimination and many claims for discrimination are brought whilst the working relationship continues.
In terms of submitting a defence, the document used is called an ET3 form, and this must be submitted with 28 days of the claim form (the ET1) being served on the Employer.
In unfair dismissal claims, if the claim is not submitted in time the legal test applied is whether or not it was ‘reasonably practicable ‘for the employee to submit their claim to the Tribunal on time. Where there is a claim is for discrimination, the Tribunal has a discretion to allow a claim to proceed out of time if it is considered ‘just and equitable’ to do so.
On first glance you might be forgiven for thinking that the Tribunal took a hard line in the case of Cygnet Behavioural Health Ltd V Britton. A claim for unfair dismissal was submitted by the Claimant, 62 days after the primary time limit had expired. The Claimant, who was a physiotherapist, referenced his dyslexia and depression (which he submitted contributed to his lack of knowledge of the time limits) along with the fact that he was being investigated by a Fitness to Practice Committee, as the reasons why it had not been ‘reasonably practicable’ to submit his claim on time. Despite the fact that evidence came to light that the Claimant had spoken to ACAS on two occasions when time limits were discussed, the Tribunal accepted that it had not been reasonably practicable on this occasion.
However, ignorance of time limits will rarely hit the somewhat high threshold of a Claimant being able to demonstrate that it was ‘not reasonably practicable’ for a claim to be submitted on time. The decision to allow the claim to proceed out of time was appealed, and overturned, meaning that the Claimant was not permitted to continue with his claim. The Appeal Tribunal based its decision on the actions the Claimant had been able to do between dismissal and the submission of the claim, and not on what he couldn’t do. The Claimant had appealed against his dismissal, contacted ACAS (twice), engaged in ACAS Early Conciliation, dealt with the Fitness to Practice investigation, moved house and had started work as a locum. It was not disputed that the Claimant had depression and dyslexia but given everything that the Claimant had achieved post dismissal, it was perverse to conclude that submission of his claim on time ‘was not reasonably practicable’.
It would have been interesting to know whether the outcome would have been different had a claim for discrimination been brought.
This case serves as a cautionary reminder to Claimants to ensure they submit their claims on time.