As employment lawyers will be aware (and as litigants in person often later find out) there are strict limitation dates derived from statute clearly outlining the period in which a prospective claim must be presented to an Employment Tribunal.
Should a Claimant miss the relevant limitation date a Tribunal may consider that it does not have the jurisdiction to hear the complaint as presented.
In making its decision as to whether a complaint can be heard a Tribunal must have regard to the nature of the claim that is being pursued and the appropriate test that it must apply to consider whether it may extend the time limits in such circumstances.
Unfair dismissal
Should a Claimant seek to pursue a claim for unfair dismissal having missed the limitation date (three months less one day from the effective date of termination) the Claimant may seek to rely upon S111(2)(b) Employment Rights Act 1996 (“ERA”) to ask the Tribunal to hear the claim.
The question for the Tribunal in these circumstances is whether the Claimant presented the complaint:
“within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months”.
Case law on the application of this test has shown the difficulties that a prospective Claimant may have when pursuing claims having missed the limitation date.
The burden of proof on the Claimant is extremely high to show that it was not reasonably practicable for the complaint to be presented before the end of the three month primary time limit. Furthermore, when it did become reasonably practicable to present the claim, the Claimant will also have to show it was presented within a reasonable amount of time after that. This means they generally cannot rely on extensions that litigants issuing in time would enjoy such as extensions nfor time spent in ACAS early conciliation.
Discrimination
What is the test therefore when a Claimant seek to pursue a claim of discrimination having missed the limitation date?
The test is a different one, and one which many consider, may appear more lenient to a Claimant in this position.
Under S123(1)(b) Equality Act 2010 (“EqA”) the question for the Tribunal in these cases is whether the Claimant presented the complaint within:
“such other period as the employment tribunal thinks just and equitable.”
The application of this test, and the evidence required from the Claimant in support, was recently considered by the Employment Appeal Tribunal in the case of Owen v Network Rail Infrastructure Ltd [2023] EAT 106.
This case concerned multiple allegations of direct discrimination because of sex, and/or harassment by way of unwanted conduct related to sex or of a sexual nature.
When considering the application of this test the Tribunal in the first instance held that:
“Without explanation from the Claimant, it is not possible for the Tribunal to extend time. Therefore, the Claimant’s claims are dismissed.”
This position was overruled by the EAT. The EAT confirmed that:
“…there is no rule of law that, in the absence of any explanation in the evidence for the delay in presenting the claim, the tribunal is bound to refuse an extension (as opposed to treating this as a relevant consideration).”
Whilst it would be advantageous for a Claimant to clearly articulate any mitigation for the delays in presenting a claim of discrimination the outcome of this case clearly illustrates that a failure to do so in itself will not necessarily be decisive.
This decision once again emphasises the difference in the tests that a Tribunal will need to apply when considering claims for unfair dismissal and discrimination and arguably widens the scope for a Tribunal to find that it would be just and equitable to allow an extension of time in claims of discrimination.
