Out of time claims in the Employment Tribunal may still be considered depending on the facts of the case, as the example of Wells Cathedral School Ltd & Anor v Souter & Anor tells us. Aisling Foley examines the case in more detail.
The case of Wells Cathedral School Ltd & Anor v Souter & Anor considers an out of time claim where the claimants waited until the conclusion of their grievances before issuing proceedings.
As this case concerned claims of discrimination, the Tribunal had to determine whether it would be just and equitable to extend time in this situation to allow the claimants to bring their claims.
There were two claimants involved in this matter – Ms Leishman and Mr Souter.
Ms Leishman brought claims of disability discrimination and constructive unfair dismissal. She presented her claims on 26 April 2019. She argued that the discrimination suffered over many years had led to her raising a grievance in December 2018 and later handing in her resignation in January 2019.
Mr Souter also brought claims of disability discrimination and constructive unfair dismissal, however his discrimination claim was on the basis that he was discriminated against through association with his wife’s disability. In July 2018 Mr Souter raised a grievance and this was heard in February 2019. Mr Souter resigned in April 2019 and presented his claims on 26 July 2019.
It was accepted that some of the claims were out of time, in line with the limitation period of 3 months minus one day, however both claimants asked the Tribunal to exercise its discretion and find that it was just and equitable to extend the time limit.
Employment Tribunal decision
The claimants both argued that their claims should be allowed to proceed despite the delay, on the basis that if they did not, they would lose their right to have the merits of their cases determined. They however gave no explanation for the actual delays themselves.
The tribunal decided the case in their favour.
The tribunal judge found that, whilst there was a significant delay between the matters arising and the claims being brought, there was a genuine desire to use the grievance process to resolve the issues in question and the grievances clarified the allegations, thereby alerting the respondent to them. This therefore gave them the opportunity to investigate. The tribunal also held that the cogency of the evidence had not been affected and the respondent had not been prejudiced by the delay. The tribunal felt that these factors outweighed the delay and that the delay had been explained by the pursuing of the grievances.
The respondent appealed the decision. Their argument was that the fact of the claimants allowing the grievance process to run before bringing their claims was not enough to justify an extension of time. They felt there had to be something else to it, for example being wrongly advised on time limits.
The respondent also argued that the decision of the tribunal in this case would open the floodgates. They argued that the decision would set a precedent that where a claimant deliberately decided to complete an internal process before bringing a claim, this would automatically lead to an extension of time.
The Employment Appeal Tribunal (EAT) upheld the decision of the original tribunal.
The EAT felt that the tribunal had taken the correct approach and had undertaken a balancing exercise, which they were entitled and correct to do when considering the just and equitable test.
What to take from the decision
Often the length of the delay is a main factor in a tribunal considering whether to extend time or not, which is why the tribunal did refer to the significant delay in this case. However, it is important to remember that there are other factors to be considered which can sway a decision and that the particular facts of the case at hand make a difference.
Employees should however remember that there is no automatic right to an extension of time. All decisions will be made on a case-by-case basis.
Overall, time limits are important and the rule of thumb should be to stick to them, but a warning flag for employers here is that tribunals have scope to extend time, particularly where they do not feel an employer has been prejudiced by the delay. Applications to extend time may therefore be successful in some instances.