In the recent EAT case of The Governing Body of Sheredes School v Davies, the strict time limits in the employment tribunal have come under review once again, this time in respect of an intervention by the Solicitors Regulation Authority (“SRA”).
An employment tribunal “…shall not consider a complaint for unfair dismissal…unless it is presented to the tribunal before the end of the period of 3 months beginning with the effective date of termination”. Outside of this, the employment tribunal has a discretion to extend time, but only where it considers “it was not reasonably practicable” for the complaint to be presented in time, and it was presented “within such further period as the tribunal considers reasonable”.
Tribunal time limits are extremely strict and discretion is exercised very rarely. If a claimant misses a time limit that they could reasonably have met, even by a matter of seconds, the tribunal will not have jurisdiction to hear their claim.
It is helpful to look at the key facts of this case as a time-line of events:
|12 June 2015||Sheredes School dismiss their caretaker, Mr Davies|
|21 July 2015||Mr Davies consults solicitors, Blavo & Co and they start the ACAS Early Conciliation process|
|25 September 2015||ACAS issues an Early Conciliation Certificate. Blavo & Co fail to advise Mr Davies that he has one month from now to issue his claim.|
|8 October 2015||Mr Davies decides to take his case elsewhere. He asks Blavo & Co for his file. Blavo & Co fail to advise Mr Davies of the pending time limit.|
|14 October 2015||The SRA intervene at Blavo & Co. The firm is shut down, all papers seized and they are prohibited from communicating with all clients|
|25 October 2015||The time limit for issuing Mr Davies’ unfair dismissal claim passes|
|5 November 2015||Mr Davies instructs new solicitors, who advise him of the missed time limit and the need to issue the claim urgently|
|10 November 2015||Mr Davies presents his tribunal claim. It is 16 days out of time.|
When presenting his claim out of time, Mr Davies argued that the SRA intervention was a “special reason” making it not reasonably practicable for him to present the claim in time.
The EAT disagreed. They found that it was unquestionably Blavo & Co’s duty to advise Mr Davies of the pending time limit. They clearly had the opportunity to do this on 8 October and had they done so, Mr Davies could certainly have presented his claim in time. Therefore, Mr Davies missed the time limit due to the fault of his solicitors, not due to the subsequent SRA intervention.
The EAT remarked at the “somewhat paradoxical” nature of this decision, particularly given the fact that Mr Davies had been chasing Blavo & Co for assistance for some time. The EAT noted that in different circumstances, for instance if the 8 October conversation had not taken place, the intervention might well have provided a “special reason”. But in the circumstances of this particular case, it did not. It was reasonably practicable for Mr Davies to present his claim in time and therefore the tribunal did not have jurisdiction to consider it.
The EAT added that whilst this outcome was likely to be “disappointing, if not baffling” to Mr Davies, the silver lining for him was the possibility of a negligence claim against Blavo & Co.
The case is a lesson not only for advisers – to check and double check time limits and keep their clients informed of them, but also to claimants. It is principally a claimant’s responsibility to know and understand the time limits applicable to their case. As this case demonstrates, an unreasonable delay, or failure by legal representatives to advise a claimant of time limits, will not generally be a good enough excuse to have the claim heard out of time.