Employment Appeal Tribunal Judgment – Out of Time Claim!!
A recent case in the Employment Appeal Tribunal reminds employees how important it is to get claims for unfair dismissal lodged IN TIME!!!!!
In DHL Supply Chain Limited v Fazackerley, UKEAT/0019/18/JOJ, Mr Fazackerley was dismissed for Gross Misconduct with his employment ending on the 15 March 2017. Following his dismissal, he called the ACAS helpline and was given guidance to appeal against his dismissal and exhaust the employer’s internal appeal process. Unfortunately, the employer did not conclude the appeal process until late June 2017. By the time the Mr Fazackerley lodged his claim on the 19 July 2017, it was out of time.
Section 111 of the Employment Rights Act 1996 states that claims for unfair dismissal must be lodged within three months, less 1 day from the date of dismissal, or “within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months”.
The Employment Tribunal are notoriously strict in their application of this rule. However, in this case, and in what may well appear to be a surprising decision, the Judge found that it was not reasonably practicable for the employee to have presented his claim in time when erroneous ACAS advice caused the delay. The claim could therefore proceed.
As we would expect, the Respondent appealed against this decision, but the Employment Appeal Tribunal agreed that the claim could continue. The EAT did point out that another Judge may well have taken a different view. However, they would not go so far as to disturb the Tribunal’s initial decision as they were satisfied it was nowhere near being perverse.
- We would never advise a client to rely on a case such as this when calculating their time limits. We would always advise clients to submit their claims in the prescribed time limits, even if internal appeal procedures are ongoing.
- Our view is that this case is likely to be the exception rather than the rule and is unlikely to be followed. Time limits in our view remain STRICT.
- It should also be remembered that the time and cost associated with simply getting to the point of being able to proceed with this out of time claim could well stop many employees pressing on.
If you are considering a claim in the Employment Tribunal this case proves how incredibly important it is to receive sound advice at the earliest opportunity to ensure your claim is lodged in time. All our solicitors work solely on employment law matters and want to help.
For more information call LincsLaw Solicitors on 01522 539501 or visit our website at www.lincslaw.co.uk for more information.