TRIBUNALS - 02.07.2020

Challenging out of time tribunal claims

Strict time limits apply to the presentation of tribunal claims. However, many claimants lodge claims late, which is known as being “out of time”. If this happens to you, why should you alert the tribunal as quickly as possible?

Time limits

Where a job applicant or an employee wishes to bring a tribunal claim against an employer, they must do so within a specified amount of time. For example, all discrimination-based claims must be lodged within six months of the last act of discrimination complained of and an unfair dismissal claim must be brought within three months of the effective date of termination.

Early conciliation

Where the parties agree to enter into Acas early conciliation, the time limit will be extended to enable the claimant to present a claim. However, despite this and the strict lodging time limits, many claimants often file claims late. This could be by a few hours or some days or weeks.

Without merit

Whilst the tribunal should reject any claims that are clearly late in its initial sift, it won’t always do so where the facts aren’t clear cut. That means you may find yourself on the receiving end of a tribunal claim which is out of time. Where this happens, you should bring this fact to the tribunal’s attention immediately.

Example case

The reason why is illustrated in Wilson Barca LLP v Shirin 2020 . Shirin (S) had resigned from Wilson Barca, a solicitor’s practice, after she was subjected to harassment and abusive behaviour. At the hearing, the tribunal found in S’s favour but it didn’t consider compensation.

Too late to object

Instead, the tribunal listed a separate remedy hearing for several months later. This is sometimes done to give the parties an opportunity to negotiate a financial settlement. At that remedy hearing, the employer’s representatives informed the tribunal that S’s claim had been lodged out of time.

EAT ruling

However, the tribunal rejected their arguments that no compensation should be awarded on this basis. The employer appealed to the Employment Appeal Tribunal (EAT) which has now also rejected this argument.

The EAT said that as S had been successful at a liability hearing there was a corresponding right to a remedy hearing. The employer couldn’t block this hearing because the claim had actually been presented out of time.

Tip. The employer in this case lost due to a legal loophole. Where you are certain that a claim is out of time, or it’s a distinct possibility, inform the tribunal in writing at the earliest opportunity; don’t wait for a hearing or assume the tribunal will pick up on the point. Also, notify the employee and invite them to withdraw their “invalid” claim with immediate effect.

Risk. If a claim gets through out of time and wins, not only will be difficult and expensive to bring an appeal, ultimately it may not be successful.

For the EAT’s ruling in this case, visit http://tipsandadvice-personnel.co.uk/download (PS 22.14.07).

Although the tribunal sifts claims, it won’t always conclude that a claim is already out of time and reject it. This is a risk where the facts aren’t clear cut and some defective claims have made it to a hearing and succeeded. As this would be difficult and expensive to challenge on appeal, it’s far safer to raise an objection ASAP.

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