EAT Overturns Decision to Accept a Claim 62 Days After the Expiry of the Statutory Time Limit

In Cygnet Behavioural Health Ltd v Britton, Mr Britton  was employed by Cygnet Behavioural Healthcare Ltd as a senior physiotherapist. He was dismissed during his probationary period as there were concerns about his fitness to practice. He brought a claim against his employer for automatically unfair dismissal relating to various protected disclosures he alleged he had made. The claim form was due to be submitted on 22 February 2020. Unfortunately, Mr Britton did not present his claim form until 29 April 2020 - 62 days after the primary time limit.

In order for the employment tribunal (ET) to hear Mr Britton's claim it had to determine whether or not it had been reasonably practicable for him to present his claim within the primary time limit, and, if not, whether the claim was subsequently presented within a reasonable period following the expiry of the time limit.

Why Was the Claim Submitted So Late?

At the time of the dismissal, Mr Britton was being investigated by his regulatory body, the HCPC. The ET considered his involvement in this investigation, alongside the deterioration of his mental health and his dyslexia, and concluded that it was was not reasonably practicable for him to have presented his claim by 22 February 2020. The ET also found that the subsequent 62 day delay in presenting the claim was reasonable. The employer, Cygnet, appealed against this decision.

Why Was the Decision to Accept the Claim After the Expiry Date Overturned?

The EAT held that it was Mr Britton's responsibility to research and understand the time limits in place and ensure they were met. Mr Britton had been proactive in a number of other areas of his life - for example, he appealed against his dismissal, he completed the formalities of early conciliation, and also worked as a locum. The Tribunal found that if he was able to do all of these tasks, he could have taken the time to check if any time limits applied to his claim. In this case the EAT did not think that stress or dyslexia explained Mr Britton's failures. In addition, the claim form was presented 2 months after the primary time limit, which was held to be unreasonable.  

What Does This Mean for Employers?

In unfair dismissal cases a claimant will need to prove it was not reasonably practicable to present their claim in time. This remains a high hurdle to overcome.

For claims under the Equality Act the test is different. Claimant's need to show that it would be just and equitable to extend time.  This is generally seen as an easier test to satisfy and the EAT in this case commented that had it been applying the 'just and equitable' test it is likely that Mr Britton's case would have proceeded.  

For more information on the statutory time limit for claims please contact Sian Knight-James in our Employment team on 07468 698 971, or complete the form below.