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Extending time to make a tribunal claim

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As every UK Employment lawyer knows, the validity of most Employment Tribunal claims is dependant on the claimant complying with clear and strict time limits. In most cases, this is 3 months from the behaviour of the employer (or the latest incident of the particular behaviour). Although the time limits should be strictly observed, the Employment Tribunal does have a discretion to extend in some circumstances. While no top Employment solicitor would suggest that a claimant deliberately misses the 3-month time limit on the basis that this discretion exists, there are cases when circumstances mean that the claimant is simply unable to comply with that deadline. The Employment Appeal Tribunal has recently held that where an Employment Tribunal has made material errors in relation to the facts and in explaining its reasons, a decision not to extend time limits on the basis that it would be just and equitable to do so could not stand.

The facts in Thompson v Ark Schools

As the best employment lawyers know, the facts are often critical in employment law cases, and Employment claim solicitors will always take note. Mrs Thompson was living in Australia with her husband and children. She accepted a role in London to start in February 2016. The role would initially be 3 days per week, moving to full time in April 2016. Having accepted the job, she had started to make preparations to emigrate to the UK with her husband. She then discovered she was pregnant and that there were medical complications associated with her pregnancy. She contacted the employer, explaining the situation and suggesting a revised start date of September 2016, working 3 days a week. The employer said it could not accept the new arrangements and withdrew the job offer on 3 February 2016.

Mrs Thompson eventually lodged her Employment Tribunal claim on 8th November 2016, having gone through the early conciliation procedure. Essentially the combination of events had caused her a number of physical and mental health issues, including depression. She had initially only learned of the possibility of a claim after the 3 month time limit had expired, and while she was still living in Australia, and had thought that this would prevent her from bringing a claim. The couple and their children did move to the UK and she suffered another period of ill health but was eventually able to take advice from the Citizen’s Advice Bureau and from then she took advice from a legal advisor who explained the possibility of the time limit being extended.

The Tribunal decision

The Tribunal accepted that Mrs Thompson, the claimant, had been unwell, but that she had not been completely incapacitated for the whole period February 2016-November 2016. In particular, the Tribunal found that from August, she could have done more to progress her claim, and on that basis it was not just and equitable to extend time to 8th November 2016 when she actually submitted her claim.

The Employment Appeal Tribunal overturned the Employment Tribunal’s decision

The Employment Appeal Tribunal found serious deficiencies in the Employment Tribunal’s fact finding in this case. As a result, it had not taken account of everything that was relevant or had taken into account things that were irrelevant; in addition, the Employment Tribunal had not explained itself nor its reasoning in reaching the conclusions it had reached.

Having failed to make clear findings in respect of the dates that Mrs Thompson was and wasn’t incapacitated, the Tribunal then confused the order in which she undertook research and obtained preliminary advice while she was still in Australia. The Tribunal had then ignored the short period of time between this and her emigration to the UK. The Tribunal had then gone on to make further errors as far as the chronology of events including research carried out by the claimant once in the UK, advice received first from the CAB, and then, when this proved inadequate, advice from a legal advisor. The Employment Appeal Tribunal found that the errors in reasoning and in explanation meant that the decision not to exercise discretion and extend the time limit was ‘unsafe’ and the appeal would be allowed. It remitted the matter back to a different Tribunal to consider the application again.

What the decision means

In essence, as UK employment lawyers will recognise, this is really a salutary lesson for the Employment Tribunal. It had clearly become confused with the chronology of events, what happened when and the actions Mrs Thompson had or had not taken at any particular time. It had then failed to properly explain itself and its decision making.

The case also serves as a reminder that while it is not to be recommended as a course of action to any claimant, if there are good and compelling reasons why he or she has not been able to submit their claim in time, all is not lost, and the Tribunal may exercise its discretion to allow the claim in.

For advice and support on any employment law matter, please contact us at OTS Solicitors on 0203 959 9123. Our experienced London employment solicitors will be happy to help, whatever your issue.

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