For a dismissal claim such as unfair dismissal, an employee has 3 months less one day from the last day of employment to bring a claim in the employment tribunal. For a discrimination claim, an employee has 3 months less one day from the last act of discrimination to bring a claim. These are known as limitation dates.
Before an employee can bring a claim to the employment tribunal, in most cases, they must first inform ACAS (The Advisory, Conciliation and Arbitration Service) of their intention to bring proceedings and commence the mandatory early conciliation process. The early conciliation process is designed to explore whether there is an opportunity to settle the claims to avoid litigation, if possible. This early conciliation process effectively ‘stops the limitation clock’ while the parties try to reach a settlement. If a settlement can’t be achieved, the early conciliation certificate is issued by ACAS and an employee then has a limited timeframe in which to issue a claim in the employment tribunal. Failure to issue a claim in the correct timeframe may prevent an employee from being able to pursue their claim altogether.
The employment tribunal has the discretion to extend the time limit in order to accept a claim after the limitation date has passed. The employment tribunal can extend the limitation date for discrimination claims if it considers an extension to be “just and equitable”. For unfair dismissal and most other employment rights claims, the limitation period can be extended if the employment tribunal considers that it was not “reasonably practicable” for the employee to bring a claim within that time.
The employment tribunal interprets the “reasonably practicable” test very strictly, requiring an employee to prove the reason the limitation date was missed. A claimant will be required to explain the reason why he/she has been unable to issue a claim in time and where supporting evidence is available, a claimant should draw this to the attention of the tribunal to assist in supporting its reasons for it not being reasonably practicable to prevent the claim in time.
The employment tribunal generally considers the “just and equitable” extension test to be an exception to the rule as time limits are applied strictly and there is no presumption in favour of extending time. The employment tribunal must, however, exercise its discretion and consider each case individually.
It is important, considering the risk that a tribunal may not agree to extend time debarring an employee from bringing claims against the employer, for a claim to be issued in good time.
If you would like to discuss any of the issues in this case, please do not hesitate to contact Emily Yeardley.
This article is not a definitive statement of the law. It is designed as a free update on the law at the time of publishing. It is not a substitute for legal advice on specific facts and circumstances. BakerLaw LLP and/or the writer accepts no liability or responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.