The recent employment tribunal case of Ms S O’Brien v Holmes & Hills Solicitors LLP shows just how important it is for an employee to get their claim in on time.
Ms O’Brien alleged that she was dismissed because she was advised to self-isolate during the lockdown last year, which meant staying away from her workplace.
Under the Employment Rights Act 1996, an employee must file their claim of unfair dismissal within three months from their last day of employment, subject to an extension if they have participated in Acas early conciliation.
Unfortunately, O’Brien filed her claim 21 weeks late.
O’Brien argued that she had an “exceptionally difficult” lockdown. In particular, her father-in-law died from COVID-19, which meant that she had to provide emotional and practical support to her partner and autistic daughter, who were both deeply upset. On top of that, she was caring for her three month old granddaughter as her daughter-in-law was living alone and suffering from mental health difficulties. Understandably, O’Brien said she was left “exhausted and distracted” and she held out in the hope that Holmes & Hills Solicitors LLP would have a change of heart.
She also stated that, following her dismissal, she contacted several solicitors who told her that she wasn’t eligible to bring a claim as she didn’t have two years’ continuous service, before she found out that she may not need it as she could argue that her dismissal was for a health and safety reason – an automatically unfair dismissal with no qualifying period.
The law states that a tribunal may only extend time for presenting a claim where it was “not reasonably practicable” for the complaint to be presented in time and the claim was nevertheless presented “within such further period as the tribunal considers reasonable”.
When considering whether it had been “reasonably practicable” for O’Brien to present her claim within the 3-month period, Judge Burgher acknowledged that O’Brien had “a number of very difficult personal circumstances”, but the time limit was a “statutory gateway” that must be complied with.
The Judge noted that O’Brien was able to contact Acas and her solicitors prior to the expiry of the time limit and held that she was not incapable of presenting her claim in time due to ill health. As such, her claim was dismissed.
In short, time limits are applied strictly by the employment tribunal and are only extended in extraordinary circumstances. Care should be taken when calculating them and, if in doubt, it is advisable to seek professional legal advice.
Nalders has a dedicated and committed team of employment law specialists in Cornwall who are ready and waiting to advise you on any employment or commercial arrangements, or on employment contracts more generally. Feel free to get in touch with Gayle McDermott, Dale Band, Luke Smith, or Lee Middleton by using our message system for more information.