The claimant had been summarily dismissed for gross misconduct but he disputed the respondent’s version of events and embarked upon an internal appeals process. The drawn-out appeals process which took longer than three months was due to the fact that no letter of dismissal had been sent to the claimant and it was only two months after dismissal that it was requested by the claimant.

The internal appeal was unsuccessful for the claimant and it was after this that he made further enquiries about his dismissal, but the three-month period for lodging a claim to the Employment Tribunal had elapsed.

Throughout this process the claimant had repeatedly told the respondent he had an ‘employment lawyer’ looking at the documents with a view to legal action.  However, it later transpired that this was only a ‘bluff’ and no legal advice had been received.  It was only after the claimant had contacted ACAS (the equivalent would be the LRA in Northern Ireland) that he became aware of the three-month time period for lodging a claim.

At first instance, the Employment Tribunal found that the claimant had not issued proceedings sooner because he was not aware of the time limit; he did not know of the time limit until he contacted ACAS; he had not contacted any other skilled advisor and he was under the assumption that he needed to exhaust any internal appeals process before lodging a claim.  As a result, the Employment Tribunal found that the ‘ignorance’ of the time limit was reasonable and that the claim was lodged with a reasonable time.  The respondent appealed this decision on jurisdiction.

The EAT outlined the statutory guidance in Section 111 of the Employment Rights Act 1996 (equivalent is Article 145 of the Employment Rights (NI) Order 1996) which states that the claim should be submitted within three months or a further period the tribunal considers reasonable when it was not reasonably practicable for it to be presented within three months.

Interestingly on the point of what is reasonably practicable, His Honour David Richardson stated that the fact that the respondent had not sent the letter of dismissal and failed to complete the internal appeals process in a quicker fashion was only context and did not go to the heart of what was reasonably practicable.

Whilst it was held that the Employment Tribunal had not considered whether it was reasonable to expect the claimant to take more positive steps to find out about how to enforce his rights, the Judge was critical of the current legal position. He outlined that the narrow three-month test can lead to injustice and it may be better for a broader test but that it would be for Parliament to make that decision.

Accordingly, the case was remitted to the Employment Tribunal for the purposes of a hearing that would consider whether the claimant ought to have taken positive steps on enforcing his rights.

Practical Lessons:

The three-month time limit for lodging a claim to the Industrial Tribunal is comparatively short when considered alongside other types of litigation that regularly allow three years or even six years.   The safety net for claimants is that it can be extended when it was not reasonably practical to present the claim.

The nature of this was seen in this case with the Judge outlining that reasonably practicability rests with the claimant and the failings of the respondent are only context.

A very interesting point is that the Judge outlines that there is a need for change to the time limits in employment cases.  This coupled with the current Law Commission consultation (albeit in England and Wales) may lead to change to the legislation.  Therefore, it is important that advisors, employers and employees keep abreast of any developments that may occur in this area in the future.
https://assets.publishing.service.gov.uk/media/5d5e622b40f0b670654d8ce2/Inchcape_Retail_Limited_v_Mr_A_Shelton_UKEAT_0142_19_JOJ.pdf

Note: The three-month time limit in Northern Ireland starts on the day following the effective date of dismissal, e.g. if an employee is dismissed on the 30th August the three-month time limit for lodging a claim expires on the 30th November, whereas in GB the three-month time limit would expire on the 29th November.