Extension of Time - Tribunal Allowed to Consider Strength of Claim Presented Out of Time

If a would-be claimant misses that deadline for any reason, they may be granted an extension of time in limited circumstances.

Why Are Time Limits Important in Tribunal Claims?

If a claim is not submitted to a Tribunal within the relevant time limit, the Tribunal will not have jurisdiction to hear the claim. However, if a claimant has compelling reasons for missing the deadline, the Tribunal has the power to accept the claim late.

There are two separate statutory tests for extending the time limit for submitting a claims. Claims brought under the Employment Rights Act 1996 (such as unfair dismissal) can be submitted late if it was 'not reasonably practicable' to present the claim in time. Claims brought under the Equality Act 2010 (such as discrimination claims) can be submitted late if it would be 'just and equitable' for this to be permitted.

What Was the Background to the Claim?

In the case of Kumari v Greater Manchester Mental Health NHS Foundation Trust, Ms Kumari was employed by the Trust from August 2017 until August 2019 when her employment terminated following her resignation. She presented claims for unfair dismissal and race discrimination on 27 January 2020. She included a short narrative in her form referring to "numerous incidents" during the course of her employment, and one further incident of alleged harassment on 8 October 2019, after her employment had terminated. The Trust's solicitors filed a response arguing that all Miss Kumari's claims were out of time.

What Did the Tribunal Decide?

A preliminary hearing took place in September 2020 to consider whether Miss Kumari's claims had been submitted in time, and if not, whether an extension of time should be granted. Miss Kumari said she had not submitted her claim sooner due to being "burnt out" and in poor mental health. However she did not seek medical advice and nor did she present any medical evidence to the Tribunal.

The Tribunal concluded the unfair dismissal claim was presented out of time and that there was no justification for this. The unfair dismissal claim was therefore dismissed and Miss Kumari did not appeal that decision.

The Tribunal also found the race discrimination claim had been submitted late and it would not be just and equitable to allow an extension of time. In reaching its decision the Tribunal commented on the strength of Miss Kumari's claim, observing that it could see no link in the claim between the treatment Miss Kumari received, and her race. Miss Kumari applied for a reconsideration of the decision, which was refused. She then appealed to the Employment Appeal Tribunal (EAT).

What Did the EAT Decide?

The EAT upheld the Tribunal's decision. The Tribunal has a wide discretion in respect of what considerations it takes into account in determining whether it would be just and equitable to allow an extension of time. The potential strength of a complaint could be relevant and if so, the Tribunal must conduct its assessment with reference to identifiable factors apparent at the preliminary hearing.

What Can Employers Learn from This Decision?

Whilst this is a procedural case, it has important implications for employers. It is not uncommon for claimants to submit claims out of time, and it is important for employers to be aware of Tribunal time limits so that any late submission can be appropriately challenged. Depending on the circumstance, it may be appropriate to make representations about the strength of a case in the context of defending an application to extend time.

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