Although the law requires complainants to lodge a claim within three months less one day of the act they want to complain about, tribunals can extend time in certain circumstances.
In BLISS Residential Care Ltd v Fellows, the Employment Appeal Tribunal (EAT) held that the tribunal should not have extended time for a solicitor who missed the time limit because she sent the form to the wrong tribunal office.
Basic facts
After being dismissed on 8 October 2020, Ms Fellows instructed Granville’s Legal Services to lodge an unfair dismissal claim on her behalf. Her solicitor was a newly qualified practitioner, Ms Rolls, who had not previously dealt with a tribunal claim. In addition, it had to be lodged during the Coronavirus pandemic when solicitors and tribunals faced considerable administrative difficulties.
Once the early conciliation certificate had been issued, Ms Rolls thought the claim had to be submitted by 13 February, although the time limit expired on 10 March. She then sent the claim form by post to the regional office in Bristol instead of the central office in Leicester, contrary to the Presidential Practice Direction 2020 requirements.
On 10 March, she received a letter as an email attachment indicating that the claim form had not been properly presented. Rather than filing it online (meaning it would have been received on time), she resent it by post to the Leicester office where it was received on 12 March, two days late.
Relevant law
The Presidential Practice Direction, Presentation of Claims dated March 2020 sets out three methods for submitting a claim form: online; by post to the Leicester office; or by hand to an employment tribunal office listed in the Schedule to the Practice Direction.
Section 111(2) of the Employment Rights Act states that claims may be presented to an employment tribunal either three months after the dismissal date or “within such further period as the tribunal considers reasonable … where it is satisfied that it was not reasonably practicable” to be presented earlier.
Tribunal decision
The employment judge concluded that Ms Rolls had no reason to think the claim had not been properly submitted until she received the letter telling her otherwise. Noting the problems caused by the pandemic for solicitors and the employment tribunal staff, she concluded that it had not, therefore, been reasonably practical for Ms Rolls to submit the claim within the primary time limit and that the delay had been reasonable.
Bliss appealed to the EAT, arguing (among other things) that the tribunal had misapplied the statutory test.
EAT decision
Allowing the appeal, the EAT held that Ms Rolls had made three fundamental errors:
- She had miscalculated the primary time limit.
- She had submitted the claim form to the wrong postal address.
- She had failed to resubmit the form online so that it was received within the primary time limit.
Given this catalogue of errors, the EAT found the judge’s reasoning hard to fathom, not least because she had correctly stated that as a solicitor, Ms Rolls could be expected to know what the presidential direction said. Accordingly, it could not be reasonable for her to fail to submit the claim form by one of the methods that it set out.
The fact that this was the first time Ms Rolls had filed a claim in the employment tribunal was not a factor that could determine whether it was reasonable for her to be unaware of the time limit, nor how the claim form was to be submitted. The Coronavirus pandemic did not prevent her from making herself aware of the time limit or the permitted methods of submission, not least because the information was readily available on the internet.