UK: Time Limits For Unfair Dismissal Claims

The Employment Appeal Tribunal has confirmed in CMB v Hamm that delaying the presentation of a claim for unfair dismissal until an internal appeal procedure has been followed and completed will not justify a late claim outside the 3 month period.

The normal time limit for lodging an unfair dismissal claim is 3 months and this can only be avoided where the claimant can present evidence that compliance with the time limit was "not reasonably practicable" and that the claim has been submitted within a reasonable time of its becoming practicable to present the complaint. The courts have generally allowed late claims for unfair dismissal in very limited circumstances.

Examples of where it would not be reasonably practicable to bring a claim would be where the employee does not have all the information relating to his dismissal (Marley (UK) Ltd v Anderson 1996), or where the employee is prevented by serious illness (Schultz v Esso Petroleum Co Ltd 1999), although the EAT stresses that previous decisions are not hard and fast rules since each decision is based on the particular facts in the case.

The facts of the CMB v Hamm case were as follows:

The claimant presented a claim for statutory redundancy pay from the estate of his deceased employer. In Statutory Redundancy claims, the same "not reasonably practicable" test for exceeding the time limit applies albeit that the time limit for presenting claims to the EAT in the redundancy case is 6 months. In this case, the claimant had delayed presenting his claim pending an internal appeal against his employer who subsequently died. His dismissal had taken effect in February 1998 and his internal appeal was dismissed in March 1999. He lodged his claim in June 1999 and was therefore over a year out of time.

The EAT held that in the circumstances it had been reasonably practicable for the claimant to have lodged his appeal within the time limit notwithstanding the internal procedure was being followed. The EAT then listed some of the relevant principles from case law on which it had based its decision:

• Whether lodging a complaint was reasonably practicable is a question of fact for employment tribunals
• Tribunals should ask whether the lodging of the originating application was reasonably practicable within the relevant limitation period
• The test would not be satisfied just because it was reasonable for the claimant not to have lodged his originating application within the limitation period
• Ignorance of, or a mistaken belief in, essential matters were not impediments justifying the lodgment of a claim out of time, unless the ignorance or mistaken belief was reasonable
• Ignorance of the time limit did not, of itself, justify the presentation of a claim out of time.