An employee wishing to bring an unfair dismissal claim must do so within three months of their effective date of termination. Time limits for presenting claims to the Employment Tribunal (ET) are normally strictly enforced. If the deadline is missed, Section 111(2) of the Employment Rights Act 1996 (ERA) states that the claim will only be accepted if it is presented ‘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’.
In Miah v Axis Security Services Limited, a building security manager who wished to claim unfair dismissal failed to persuade the Employment Appeal Tribunal (EAT) that the time limit for bringing his claim should be extended to the next working day when the last day for presenting it fell on a Sunday.
Mr Miah’s ET1 claim form was date stamped by the ET as received on Monday 30 January 2017, one day after the three-month time limit expired. He contended that it had been posted by recorded delivery on Thursday 26 January. It had not reached the ET during its opening hours on Friday 27 January, but he argued that the fact that the ET office was closed over the weekend meant that it had not been possible to deliver the claim and it should be taken as presented in time. However, no evidence was produced to corroborate his account. Indeed, at a separate ‘wasted costs’ hearing it had been stated that the claim was not actually posted until Friday 27 January. It was also argued that in any case Rule 4(2) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (ET Rules) allows an automatic extension to the next working day where the specified time limit ends on a non-working day.
The ET noted the discrepancy regarding evidence as to when the claim was posted and that no attempt had been made by Mr Miah’s solicitors to check whether the claim had been received by the ET, even though it was posted so close to the deadline. As for the argument regarding Rule 4(2), the ET found that this only refers to time limits within the ET Rules, whereas the time limits applicable to an unfair dismissal claim are set out in Section 111(2) of the ERA. In the ET’s view, Mr Miah’s claim had not been presented in time when it was reasonably practicable to do so and it therefore had no jurisdiction to hear it.
On appeal, the EAT upheld the ET’s view that Rule 4(2) does not apply to the statutory time limit imposed by Section 111(2) ERA. Whilst acknowledging the practical difficulties of presenting a claim on a non-working day, the EAT was satisfied that Rule 4(2) does not change the approach an ET is bound to adopt in such cases. It clearly states that it only applies to the ET Rules themselves or to relevant Practice Directions or ET Orders. An ET claim is presented when it arrives in the ET office. Where a claim is date stamped as received on a Monday (or a Tuesday following a bank holiday), it is open to the ET to find as a fact that it was actually received over the weekend (or on the Monday if that was a bank holiday). That is a matter of fact for the ET to decide. Were Rule 4(2) to apply in such cases, this would serve to extend the time limit in those cases, which is not what Section 111(2) ERA provides.