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When Are Time Limits for Employment Claims Flexible?

on Friday, 31 May 2019.

A claim for unfair dismissal and a claim for race discrimination were presented to the tribunal out of time. The unfair dismissal claim was rejected but the discrimination claim was not. Why?

What Are the Time Limits for Employment Claims?

The majority of employment claims must be brought within three months of the act complained of.

For example, an employee who alleges that they have been unfairly dismissed must initiate pre-claim conciliation within three months of the termination of their employment.

In some circumstances, however, employment tribunals will grant an extension of time to initiate the claim. Different types of claims are subject to different rules on whether or not an extension of time will be granted, including on the following basis:

  • Discrimination claims - would it be 'just and equitable' for the time period to be extended?

  • Unfair dismissal claims - was it 'reasonably practicable' for the claimant to submit the claim on time?

Pora v Cape Industrial Services Ltd

Mr Pora was dismissed by Cape Industrial Services on 12 May 2017. He instructed a law centre to make claims of unfair dismissal and race discrimination on his behalf. Despite repeated assurances that his claims were being handled, the claims were not initiated by the law centre.

When Mr Pora discovered this, he approached Polish Community UK for assistance. The claims were presented to the Employment Tribunal (ET) on 23 March 2018 - 10 months after the dismissal - and therefore were technically seven months outside of the deadline.

The ET dismissed the claim for unfair dismissal as it found that it had been 'reasonably practicable' for Mr Pora to bring the claim in time, and therefore the time limit could not be extended. However the ET referred the discrimination claim to a full hearing. Although it, too, had been initiated out of time, it might be 'just and equitable' in the circumstances to extend the time limit.

Mr Pora appealed, arguing that it had not been 'reasonably practicable' for him to bring his claim on time, because he had instructed solicitors to file his claim and they had assured him that they were dealing with his claim.

The Employment Appeal Tribunal dismissed the appeal and confirmed that where a claimant knows they have a claim, and puts that claim in the hands of legal advisers who then fail to present it in time, it was still 'reasonably practicable' for the claimant to have presented that claim in time.

What Can Employers Learn from This Decision?

A request for an extension of time for initiating an unfair dismissal claim will be refused even if the failure was not the claimant's fault and it would be just and equitable to grant the request.

This is because the 'reasonably practicable' test is more difficult to satisfy than the 'just and equitable' test.

In practice, this means that a judge has more discretion when considering a late discrimination claim than a late unfair dismissal claim.

If you would like to discuss an employment claim, please contact Nadjia Zychowicz in our Employment Law team on 01923 919 375, or complete the form below.

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