The issue of employment tribunal time limits

Referencing a recent judgment, Benedict Gorner explains when the time window for a claim brought before the employment tribunal can be extended

The issue of employment tribunal time limits

Issue

There is a short window of time in which claims must be submitted to an employment tribunal. Generally, a claimant will only have three months from the date of the incident that gives rise to the claim. The Acas early conciliation process may extend this by a few weeks depending on how long the conciliation period is, but claims still have to be submitted relatively quickly or they risk being rejected.

However, employment tribunals do have the power to extend the time limits when a claim is late. When a claim relates to discrimination the employment tribunal will have to consider whether it is just and equitable to extend the time. The case of (1) Wells Cathedral School Ltd (2) Stringer v (1) Souter (2) Leishman highlighted the factors that may be taken into account when carrying out the just and equitable assessment. 

Facts

The two claimants were husband and wife and were both employed as music teachers at the same school. 

Ms Leishman had been diagnosed with cancer in 2016 and had been absent for almost a year. Mr Souter had also been forced to take time off in 2017 following a bereavement and had subsequently suffered from stress. Allegations had subsequently been made regarding their capability.

Leishman believed these allegations had not been raised in good faith and that it was part of a plan to get rid of them both. In March 2018, she made a data subject access request which led to emails from 2016 and 2017 being revealed which she believed showed evidence of this plan. 

They both submitted grievances. Leishman resigned on 4 January 2019 and Souter on 25 April 2019 when their grievances were not upheld. Their respective claims were submitted in the employment tribunal on 26 April and 26 July 2019 following Acas early conciliation. 

The employer argued that the employment tribunal had no jurisdiction as the claims were out of time. 

Decision

While it was accepted that the emails at the centre of the claim had originally been sent in 2016 and 2017, both claimants had been unaware of their existence until the 2018 response to their subject access request. 

There had been a significant delay between those emails being revealed and their claims being submitted. However, that delay had been explained by the fact that they had been pursuing grievances within the organisation to the point of their resignation. 

This meant the employer had been fully aware of the allegations over a long period of time. Their claims would come as no surprise to the employer and there was no suggestion that the cogency of the evidence had been affected. 

This led to the finding that it would be just and equitable to extend the time limit as there would be no significant prejudice to the employer. 

Key points

Deciding whether it is just and equitable to extend the time for a claim to be submitted will be down to the particular facts of the case. While the length of, and reason for, the delay will usually be the chief focus of the tribunal, weight may be given to other factors. 

The fact there had been no loss of evidence was relevant as was the existence of the ongoing grievance process. While these two factors were not decisive they were influential in leading to the conclusion that it was just and equitable to extend the time limit for the claim to be submitted. 

It will be important that employers are conscious of the risk that despite the relatively short time frame in which a claim should be brought there will always be a risk of late claims being allowed – particularly where a response to a subject access request has revealed previously hidden evidence of what might be discriminatory conduct.

Benedict Gorner is a partner at Gateley