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This article was published on October 3rd, 2019
Most employment claims should be brought within a three-month time limit. If it is not ‘reasonably practicable’ for an employee to present his claim within the three-month time limit, an employment tribunal has the discretion to extend the time limit.
There are two questions the tribunal must ask: was it reasonably practicable to lodge the claim within the time limit? If not, was it then lodged within a reasonable period? The ACAS early conciliation process provides a potential one-month extension of time following the conclusion of early conciliation. However, this only applies if ACAS were contacted within the initial three-month time limit. The EAT has looked at this issue in Pearce v Bank of America Merrill Lynch.
The employee was employed as Managing Director Head of Sterling Credit. He had been off sick since July 2017. He said his absence resulted from being treated badly because he blew the whistle on poor practice. He contacted solicitors in November 2017, two and a half months after the last ‘detriment’. The time limit for lodging a claim expired later in November. ACAS early conciliation started in December, outside the three-month time limit. Conciliation ended in January 2018. The employee didn’t lodge a tribunal claim until February 2018, a month after ACAS conciliation had ended.
The employment tribunal accepted that it wasn’t reasonably practicable for the employee to lodge his claim within the initial three months due to illness. However, he did not lodge his claim within a reasonable period after that. The EAT agreed. Although the employee had been unwell within the relevant period, he had instructed solicitors. There was no reasonable explanation for the delay in contacting ACAS. There was no additional extension of time because the initial contact with ACAS had not been made within the normal three-month time limit. The month-long gap between ACAS conciliation ending and the claim being lodged was relevant. The employee’s solicitors were clearly relying on an extension of time which did not exist. There was no other explanation for the delay.
This is a win for the employer who now doesn’t have to face a legal claim (though the employee’s solicitors probably will). It is comforting for employers to see the strict test applied by the tribunals in granting extensions of time. Without a reasonable explanation for any delay, tribunals are entitled to reject a claim, even if it looks like a good one.
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