Date 5 September 2011
The time limit to present a claim for unfair dismissal is well known. The Employment Rights Act 1996 allows a tribunal to extend time if the employee can show it was not “reasonably practicable” for the complaint to have been presented within the 3 month time limit and the employee presents within a further reasonable period of time.
Tribunals have so far been understandably reluctant to permit the late presentation of complaints, particularly where claimants have been aware of the possibility of legal proceedings but have not acted within the required timeframe.
The recent case of John Lewis Partnership and former employee Charman is a decision which could potentially open the door to a myriad of late claims. Employers should be aware of the details and likely issues arising:
The essential facts
Charman (C) was 20 years old and described by the Court as “young and inexperienced” at the time of his claim. He was dismissed by John Lewis (JL) on 13 March 2010. He appealed internally and this was heard on 24 May. JL rejected the appeal by a letter dated 28 June. By now, the time limit for claiming unfair dismissal had expired (on 12 June).
C went abroad on holiday and did not make arrangements for opening his post. On his return, he read the letter from JL rejecting his appeal and acted swiftly to obtain advice and made a claim to the Tribunal on 21 July, some 6 weeks late.
C had no knowledge prior to his dismissal about the right to claim for unfair dismissal. He sought and relied on the advice of his father who knew of the right to claim but who was himself unaware of the time limit. The ignorance of C (whose thinking was interchangeable with that of his father) became the fact on which this case turned.
The key question was whether C’s ignorance was reasonable. There is a well-established line of cases on this point. If the ignorance was reasonable, then it was not reasonably practicable for an employee to make a claim in time.
JL’s main argument in the EAT – that the time limit does not stop running because of a pending appeal – was rejected.
Key Issue
Employers must heed the warning of this case. Employees are likely to run the ' ignorance ' argument and seek to test the limits of what consitutes “reasonable ignorance” .
SA Law will be arguing that the Charman case should be narrowly considered by the tribunals in future cases, the first of which is due to be heard in mid-October 2011.
We will keep you informed of any development - Please stay alert for the report back!
Contact Us
For further information or to discuss a particular matter or situation in more detail, contact Vanessa James at our St Albans office by email at vanessa.james@salaw.com or on 01727 798042.
© SA LAW 2011
Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them. You are recommended to obtain specific advice in respect of individual cases.