Delay while awaiting outcome of internal appeal
Unfair dismissal claims must be filed with the employment tribunal within three months of dismissal, unless it is not 'reasonably practicable' for the claimant to do so. This time limit is strictly applied. The mere fact that there is a pending internal appeal against the dismissal is not, of itself, sufficient to allow the claimant to file his/her claim out of time.
This was the situation in the recent case of John Lewis v Charman. However, the EAT has allowed the claim to proceed. There were 'special facts' in this case in that the claimant was young and inexperienced (20 years old) and had not taken any specialist advice.
Points to note –
- The fact that the claimant had not had the benefit of advice was a key issue here. Where the claimant has had a solicitor or trade union representative advising them, the tribunal will dismiss any claim made out of time, knowing that the claimant will have a good claim in negligence against their own advisor.
- As well as showing that it was not reasonably practicable to bring the claim in time, the claimant must also show that he filed the claim within a reasonable time thereafter. In this case there was a delay between the claimant hearing his internal appeal had been dismissed and filing his claim (28th June to 21st July). The tribunal was content that he had been on holiday over that period and thus the delay was explained.
- Respondent employers should always consider challenging any claim that appears to have been filed outside the three month period allowed by the rules. Whether it was 'reasonably practicable' for the claimant to have filed within that period is a question of fact for the tribunal to decide and, once decided, it will be very hard to mount an appeal against it.