Extending time for employment tribunal claims

Out of time claims are expected to require a judicial decision — claimants need to argue why extensions of time should be granted

Updated November 2023

The employment tribunal (ET) operates a strict time limit during which a claimant needs to present their claim. While there is often an ‘escape clause’ possibility to request an extension of time for presentation of a claim, this requires a judicial decision. If the claim is out of time and no extension of time is granted then the claim must be rejected by the ET. It is always best to bring the claim in time if you possibly can.

The starting point is to calculate the original time limit. This will be three months less a day in most cases and six months less a day for redundancy pay and equal pay (equal pay time limits are outside the scope of this article).

As registering with Acas for Early Conciliation (EC) is mandatory in almost all cases, the claimant must first notify Acas of their potential claim by providing specified key information, and may enter into EC if they choose before bringing a claim in the ET. EC can only be attempted if both parties agree. There will then be an automatic extension of at least the period of conciliation, and always of at least one month, before any claim needs to be submitted to the ET.

The early conciliation period (also called the ‘pause period’ or the ‘stop the clock’ period) starts on the day after you contact Acas (Day A), either by telephone or by completing the online EC form, and ends on the day you receive your early conciliation certificate (Day B). The early conciliation period can last up to six weeks. The reference to contacting Acas here applies specifically to contact made for the purposes of starting EC and does not include contact made to the Acas helpline for advice and information purposes.

It is worth noting that if a claimant starts early conciliation outside of the time limit for doing so, and then issues the claim, the claim will always be considered out of time. For out of time claims the best advice is therefore to register for early conciliation promptly, simply request a certificate without engaging in the conciliation process and present the ET1 claim form as soon as possible. There may occasionally be circumstances in which claimants want to try engaging in early conciliation, if they think settlement may be a possibility, or to allow more time to prepare the claim better, along with the application for an extension of the time limit. But this will still make the claim further out of time, as there is no time to be added on for periods spent in early conciliation. Claimants are more likely to want to try taking this approach in discrimination claims, where the test for granting an extension is whether it is ‘just and equitable’ to do so (rather than, for example, in an unfair dismissal claim).

Not reasonably practicable

The statutory underpin for the extension of time in an unfair dismissal claim is section 111(2) of the Employment Rights Act 1996, which states: ‘111(2) Subject to the following provisions of this section, an [ET] shall not consider a complaint under this section 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’.

This test involves two stages. First, the claimant must show that it was not reasonably practicable to present the claim in time. Then the tribunal needs to be satisfied that the time in which the claim was actually presented was reasonable.

How to show it was not reasonably practicable to bring a claim

Showing that it was not reasonably practicable to bring a claim is a question of fact for the tribunal to decide rather than a strict application of the law. The tribunal must determine whether or not it can extend time in each instance; it then also needs to set out the time limits and the reasons provided as to why an extension of time is required. Each case will therefore be determined on its individual merits. However, there are some arguments that have already been litigated and provide some guidance as to the approach the ET will take.

When setting out the reasons for the delay in an application to the ET, apply common sense and give precise, specific and, where possible, well-documented reasons as to why it was not reasonably feasible to present the claim within the original time limit. It is essential to explain the circumstances the claimant found themselves in: the barriers they faced, the decisions they made, and the reasons why they made those decisions.

Where the claimant has been incapacitated due to illness there may be some leeway, but the client will need to present quite specific details of the illness and its duration, and reasons why this meant it was not feasible to bring a claim within the time period.

In Schultz v Esso Petroleum [1993] a depressed claimant who had been dismissed had taken initial steps to seek legal advice and appeal his dismissal, but his mental health deteriorated further and he was unable to give instructions in the last few weeks before the original time limit expired. The Court of Appeal allowed the extension of time on the basis that the claimant had sought to resolve the situation initially, but had become too ill as the time limit approached, which made it unfeasible for him to bring the claim in time. The Court of Appeal was satisfied that it was not reasonable for the solicitors to instruct themselves to bring the claim or to expect that they did not have the whole of the three-month time period to take instructions. The fact that the period of deterioration fell in the latter weeks of the three-month time period was relevant.

Postal and electronic delays are sometimes inevitable, so evidence regarding such delays will be taken into account by the ET. The basic position was set out by the Court of Appeal in Consignia plc v Sealy [2002], which held that an extension of time is possible where, taking all the facts into account, the claim would have been in time but for an unforeseen circumstance; it does not matter that the claimant has waited until the last moment to present the claim.

Ignorance of employment rights is not sufficient of itself to extend time. However, the tribunal will take surrounding circumstances into account, such as whether or not a claimant had an opportunity to seek advice or had done so (Wall’s Meat Co Ltd v Khan [1978]). In a digital age, this is difficult to demonstrate in straightforward cases without significant explanation of why the client had failed to understand their rights, for example that they had accessed an out of date website or there had been a number of recent misleading news items.

Ignorance of the time limit where the claimant is aware of the right to claim is not likely, of itself, to be accepted. If the claimant knew of their rights, they will need a clear explanation as to why they did not also know of the time limits.

Waiting to complete an internal process, such as a disciplinary or redundancy appeal, is not sufficient to extend time. The time limit for unfair dismissal runs from the date of dismissal, not the date of the appeal.¹

Do not wait for criminal proceedings to be concluded before bringing a claim (Walls Meat Co Ltd v Khan [1978]). The outcome of a criminal trial is likely to be irrelevant to the ET claim and the fact that the claimant has legal representation in the criminal trial will make it much more difficult to argue ignorance of rights as the criminal legal representative should have informed the claimant. However, where there may be overlapping ET and criminal proceedings (for example, if someone is dismissed for theft from the employer), an ET may sometimes want to ‘stay’ the employment claim until after conclusion of the criminal proceedings. But this should not be a reason to delay lodging the ET claim.

Where the claim is out of time because the claimant has received incorrect advice from a solicitor, the claim will still be out of time (Dedman v British Building and Engineering Appliances Ltd [1974]). The remedy in such a case is a negligence claim against the solicitor.

If the incorrect advice is from an LCA adviser, broadly, a claimant can rely on anyone who holds themselves out to be a skilled adviser, and who gives incorrect advice regarding time limits.

In Marks & Spencer Plc v Williams-Ryan (2005), the claimant sought an extension of time for an unfair dismissal claim and argued that the CAB had advised her to extinguish her appeal rights before bringing the claim. On the facts, the Court of Appeal did not accept that the CAB had given such detailed advice. They did not preclude the possibility of allowing an extension of time in such circumstances, but only when the facts allowed.

This case highlights the need not only to give correct advice and keep good notes, but also to ensure that time limits are considered in the first interaction. It also demonstrates the importance of clearly warning any potential claimants not to miss an ET deadline while waiting for substantive advice, or to act quickly by registering promptly for Acas EC in the case of claims already out of time.

New information found outside the time limit

There is case law where new information has come to light outside of the time limit, such as in Machine Tool Industry Research Association v Simpson (1988), where a claimant who had been made redundant found out after the expiry of the time limit that her employer had re-employed someone into her role. The Court of Appeal allowed the extension of time and held that there was a three-tier test in these circumstances. First, that it was reasonable for them to be unaware, during the three-month period, of the factual basis on which they could bring their complaint. Second, that the knowledge the employee gained had been gained reasonably and was fundamental in causing them to change their mind about bringing a complaint. Third, that the acquisition of that knowledge was crucial to the employee’s decision to bring a claim.

How to show that the further time in which an out of time claim was presented was reasonable

The ET will take circumstances into account in the same way as it applies the reasonably practicable test above. The claimant must act within a reasonable time frame once they are aware that they have an out of time claim. The length of that ‘reasonable’ timeframe will be fact dependent and so a delay of days may be reasonable whereas a delay of months may not be.

Just and equitable extension of time in discrimination claims

The ‘just and equitable’ test applies to discrimination claims. Under section 123(1) of the Equality Act 2010: ‘Proceedings on a complaint … may not be brought after the end of:

a) the period of three months starting with the date of the act to which the complaint relates, or

b) such other period as the employment tribunal thinks just and equitable.’

Generally speaking it is a less stringent test than the ‘not reasonably practicable’ test; the court will consider any factors presented to them and then whether an extension of time would be fair in the circumstances. Factors such as ignorance of rights, which are unlikely to succeed in an argument about reasonable practicability, are much more likely to succeed as a ground for an extension of time.

While not directly applicable, the ET has been persuaded by the discretion afforded by section 33 of the Limitation Act 1980, which sets the time limits for claims in the civil courts. S33 is not to be used as a ‘checklist’, but can provide useful guidance as to the ET’s consideration (British Coal Corp v Keeble [1997]). The claimant should therefore provide evidence of:

a) the length of and reasons for the delay;

b) the extent to which the cogency of the evidence is likely to be affected by the delay;

c) the extent to which the party sued had cooperated with any requests for information;

d) the promptness with which the claimant acted once they knew of the facts giving rise to the cause of action; and

e) the steps taken by the claimant to obtain appropriate professional advice once they knew of the possibility of taking action.

Just and equitable extension of time in statutory redundancy pay claims

The ‘just and equitable’ extension of time test also applies to statutory redundancy pay claims. The time limit for claiming a statutory redundancy payment is six months beginning with the relevant date (normally the date of termination of employment). However, this will be extended by a further six-month period where the employee:

a) makes a claim for the payment by notice in writing given to the employer;

b) refers to an employment tribunal a question as to their right to, or the amount of, the payment; or

c) presents a complaint to an employment tribunal relating to their unfair dismissal and it appears to the tribunal to be just and equitable that the employee should receive a redundancy payment.

In determining whether it is just and equitable that an employee should receive an extension of time to claim a redundancy payment within the second six-month period, an employment tribunal shall have regard to the reason shown by the employee for their failure to take any such step within the first six months, and all the other relevant circumstances. This gives a claimant quite a strong argument for an extension of time where the delay is created by the employer dragging their feet or where there is a delay in payment.

Finally, it is worth noting that there is no further extension beyond the second six-month period except in the event of a cross-border dispute where mediation has already started.

Conclusion

While the time limits for bringing a claim in the ET are strict, there are ‘escape clauses’ that the ET is well versed in. If you have a potential out of time claim with persuasive reasoning behind the failure to bring a claim, it is worth seeking an extension. Each case will rise or fall on the subjective detail of what has happened to the claimant but this is an area of law that we can expect to come under some scrutiny and is worth keeping an eye on.

Emma Wilkinson was formerly a Senior Employment Expert in the Citizens Advice Expert Advice Team and an Adviser Editorial Board member

Endnotes

1. In Sodexo Health Care Services Ltd v Harmer (2008) the EAT was not willing to grant an extension of time in these circumstances.