Kiera Lee, writes:

1. General rule

Most employment related complaints, including claims for unfair dismissal, must be brought within 3 months of the date of the incident giving rise to the claim. Article 145 of the Employment Rights (Northern Ireland) Order (as amended) states:

"an industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal -
(a)before the end of the period of three months beginning with the effective date of termination, or
(b)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."

Tribunals have the power to extend time where they consider it was ‘not reasonably practicable’ for the complaint to be presented before the end of the three-month period (from the effective date of termination) and they will also look at the actual delay in presenting the case to decide if it had been presented in a reasonable period of time thereafter. In cases of discrimination where the primary time limits are also 3 months the test for a tribunal is whether it is ‘just and equitable’ nevertheless to consider the claim.


2. Not reasonably practicable

It is up to the claimant to show that it was not reasonably practicable to comply with the time limit. Each case will depend on the facts but there are a number of recurring factors in cases that have been considered to date:

• The manner of, and reason for, the dismissal
• Whether there was any internal process followed
• Whether the claimant had a legal or other adviser
• The reason for failure to comply with the time limit
• Whether there was a physical impediment (illness or a postal strike).
• Whether and when the claimant knew of their rights

The tribunal uses their discretion sparingly. Here are a couple of recent examples in NI cases:

Cassidy v Bradagh Fuels Limited 61/10IT
http://www.bailii.org/nie/cases/NIIT/2011/61_10IT.html

Hetherington v Home Care Services Limited 1848/10IT
http://www.bailii.org/nie/cases/NIIT/2011/1848_10IT.html


3. The effect of internal processes

Simply because an employee is appealing his employer’s decision does not mean it is not reasonable practicable to submit a claim within time. Claims should be submitted even if the appeal has not been concluded.

From April 2011 under the Employment Act (Northern Ireland) 2011 tribunals no longer have the power to reject claims where an employee has failed to put their complaint in writing to their employer and allowed 28 days to expire. In addition they no longer have the power to extend time to allow internal procedures to be completed. This simplifies time limits for bringing claims, reverting back to the position before the Employment (Northern Ireland) Order 2003, which introduced statutory dispute resolution procedures.


4. Such further period as the tribunal considers reasonable

If the tribunal accepts that it was not reasonably practicable for the Claimant to submit his claim within 3 months then it must consider what period of time for submission was reasonable. Again this will be a matter of fact in each case. In one case a tribunal considered 5 days was a suitable period of time to submit a claim and in another it accepted 5 months as reasonable. A useful and recent case in which a Northern Ireland tribunal sets out the considerations for dealing with time limits and the law on whether it is just and equitable to consider a case presented out of time is Gallagher v BT plc 5718/01IT
http://www.bailii.org/nie/cases/NIIT/2011/05718_09IT.html