Top employment solicitors are well aware that respecting tribunal rules, including time limits is just as important as the strength of any case before the Employment Tribunal and Employment Appeal Tribunal is. But what happens if a party to proceedings thinks he has met a time limit, only to discover that circumstances beyond his control have intervened? Employment claim solicitors will take note of the Court of Appeal’s recent decision in Haydar v Pennine Acute NHS Trust.
As in any litigation, time limits apply to various aspects of any Employment claim. As any UK Employment lawyer will explain, there are time limits for submitting a claim to the Employment Tribunal in the first place – in most cases, including claims of unfair dismissal and discrimination claims, a claimant has 3 months from the date of dismissal. If he or she is still employed and is bringing a claim for discrimination or for example equal pay, the time to submit a claim starts to run from the date of the last act of discrimination. Once a claim has been submitted, there are time limits for the respondent employer to return the response to the claim.
Once a claim has been determined by the Employment Tribunal, there are time limits that apply to a disappointed party who wishes to appeal the decision to the Employment Appeal Tribunal – whether this is the employer or the employee. This is usually 42 days from the date the written decision is sent to the claimant and respondent. The best employment lawyers will always advise someone considering an appeal to take note of this date, not the date the decision is received by them. This alters slightly if either the employer or the employee requests written reasons for the decision to be sent out. This can be done either at the hearing itself, or in writing within 14 days of the decision being sent out. In this case, the 42 day time limit for submitting an appeal to the Employment Appeal Tribunal from the date that the written reasons were sent out (again, note that it is not the date the reasons are received, but the date they are sent out). The Tribunal may also reserve the reasons and send them out after the decision – in which case, again, the time limit runs from the date of the reasons being sent out, and not the decision.
Extending time limits
It is possible in some cases to ask the Tribunals (both Employment Tribunal and Employment Appeal Tribunal) for an extension of the time limit for submitting either the initial claim or the appeal, but there have to be very good reasons for either to grant such an extension. In particular, the Employment Appeal Tribunal is very strict when it comes to the time limits for submitting an appeal. There is no extension of the 42 days if the decision or written reasons are delayed in reaching the potential appellant. The time for submitting an appeal to the Employment Appeal Tribunal starts to run the date the relevant document is sent out regardless of the vagaries of the UK postal system. Equally, there is little leeway at the other end of the 42 days, even when the delay is out of the appellant’s control.
The recent case of Haydar v Pennine Acute NHS Trust serves as a reminder that it is vital to adhere to the time limits – and if it appears that something may have gone wrong, this must be followed up immediately. In this case, the appellant, a doctor, had submitted his appeal on 12th May 2014 – some 2 weeks before the 42 day time limit expired. However, the Employment Appeal Tribunal had no record of receiving the appeal package, including the appeal and accompanying documentation, and did not send out the requisite acknowledgement. The appellant did not follow this up with the Employment Appeal Tribunal until 1st July – more than 6 weeks after he had posted the package and 5 weeks after the 42 days had expired.
Following earlier case law, and in particular the case of Peters v Sat Katar Co Ltd the appellant in this case might have been able to persuade the Employment Appeal Tribunal to extend the time. However, since that case, the Employment Appeal Tribunal has issued explicit guidance, in user-friendly terms. This guidance makes it very clear that if an acknowledgement of receipt has not been received from the Employment Appeal Tribunal within 7 days of the appeal being posted, the appellant should check with the EAT to confirm that it has received the appeal. The Court of Appeal considered that this was decisive, although made reference to another case that had been heard but had not been decided at that point, by the Court of Appeal the week before – Green v Mears Ltd. In that case it had been argued that the usual principles relating to extensions of time set out in the case of Abdelghafar had been superseded by the Mitchell/Denton principles. In fact, the appellant in that case also failed to persuade the Court of Appeal that the 42 day time limit should be extended.
The message of the Haydar case (and also, the Green v Mears Ltd case) is that anyone wishing to appeal to the Employment Appeal Tribunal should take careful note of the date the decision or written reasons is sent out. They should make sure the appeal is submitted in time, and then to follow up promptly if not acknowledgment of receipt is received within 7 days.
For assistance with any employment law matter, whether a claim to the Employment Tribunal or appeal to the Employment Appeal Tribunal, disciplinary or grievance, or discrimination, settlement agreements or whistleblowing, OTS Solicitors can help. Book an appointment today with one of our London employment solicitors – call 0203 959 9123.
Posted on: Tuesday, 07 August, 2018