Can you claim out of time for unfair dismissal?
In the Employment Tribunal there are strict time limits on the length of time that you have to submit your claim. In most cases the time limit is just 3 months from the date of the act that you are complaining about.
If you have a claim for unfair dismissal you have 3 months, less one day, from the date of the termination of your employment. If your last day as an employee is the 1st January then the last date that you can make your claim to the Employment Tribunal is the 31st March. If the 31st March is a non-working day(Saturday or Sunday), it is the first working day before, (Friday the 29th or 30th March).
If you have a claim for discrimination the time limit starts to run from the date of the act that you are complaining about. If it is a one off incident, then it is easier to calculate than if there is a catalogue of behaviour from the Employer.
It is always advisable to act quickly in any employment situation and you should seek clear advice about your time limits from the outset as the Employment Tribunal are unlikely to agree an extension of time to allow your claim.
There are some exceptions when an extension will be granted, and each case will depend on the particular facts and circumstances. In a recent case in the Employment Appeal Tribunal it was decided that a claim could be allowed outside of the 3 month time limit where the Employee was unwell and having significant difficulty.
In this case Mr Hutton was the employee who said that he became unable to function properly following the termination of his employment and that he could not bring himself to submit his claim. He did eventually put his claim in 6 weeks beyond the initial time limit.
The facts of Mr Hutton’s case are that he was suspended from work in November 2011 following allegations against him. After an investigation he was invited to a disciplinary hearing in early January 2012. Because he was absent due to illness he did not attend the hearing and on the 16th January 2012 he was dismissed. He was informed by letter of his dismissal and the letter arrived on the 18th January 2012. The parties agreed that this was the effective date of termination for the purpose of his time limit. Therefore the last day that he could submit his claim to the Employment Tribunal was the 17th April 2012.
Mr Hutton appealed the decision to dismiss him and attended an appeal hearing on the 20th February 2012. His appeal was dismissed on the 7th March 2012.
Mr Hutton submitted his Employment Tribunal claim for unfair dismissal on the 30th May 2012.
The Employment Tribunal in Glasgow had to consider whether it has reasonably practicable for Mr Hutton to submit his complaint within the time limit. The Employment judge accepted the evidence that Mr Hutton had given her that he was “not functioning at all” at the time in question and that he was waking every night with anxiety and sweats. He also described some of the other effects that his ill health was having upon him.
As the Judge accepted that it had not been reasonably practicable for Mr Hutton to put his claim in within the time limit, she then looked at the question of whether he submitted his claim within a reasonable time thereafter, and decided that he had, and his claim was allowed to continue.
Mr Hutton’s former employer, Norbert Dentressangle Logistics Limited, appealed against the decision and it went to the Employment Appeal Tribunal to decide.
The Employment Appeal Tribunal emphasised that every case in this area of law depends very much on its facts, and in this case the Employment Appeal Tribunal accepted the Employment Judge’s decision regarding the evidence provided by Mr Hutton and his claim continued.