Can the merits of a claim be taken into account when deciding whether to grant an extension of time?

There are strict time limits for claimants considering bringing employment tribunal claims.

For most claims, a claim form (ET1) must be received by the employment tribunal within three months from the date of the act complained of (for example, the date of dismissal or the date of a discriminatory act).

Where ACAS early conciliation applies, which is most claims, this extends the time limit to present the claim.  The full detail of how this operates is outside the scope of this article.

The tribunal will have some discretion to extend the time limit in order to accept a claim after the original deadline has passed.  The case of Kumari v Greater Manchester Mental Health NHS Foundation Trust considered whether the apparent merits of the claim can be taken into account when deciding whether to extend a limitation period.

The claim

Miss Kumari was employed by the NHS from August 2017 and the agreed date of termination was 11 August 2019.  In January 2020 Miss Kumari initiated ACAS early conciliation and indicated she was claiming constructive dismissal and race discrimination.

The respondent contended that all the complaints were out of time.

The preliminary hearing was listed to determine whether the claims were brought in time and, if not, whether time should be extended in respect either of the unfair dismissal and/or the race discrimination complaints.

Tests

Different tests apply when considering whether to extend the time limit so as to accept the claim late.

Not reasonably practicable

This test applies to unfair dismissal claims. The tribunal has to consider whether it was not reasonably practicable for the claimant to present the claim in time and then whether the claim was nevertheless presented within such further period as the tribunal considers reasonable.

Just and equitable

Slightly easier to satisfy, this applies in discrimination claims.  A tribunal can extend time for bringing a discrimination claim by such period as it thinks just and equitable.

Decision

It was found that the claims were brought out of time.  When deciding if time should be extended, the tribunal found that the merits of the claim appeared to be weak and had no reasonable prospect of success. Therefore, using this as one of the principle reasons, the claim was struck out.

The claimant appealed.  Taking into account merits was controversial, as, at a preliminary stage, the tribunal has not heard all of the documentary and witness evidence for and against the claim.

However, the Employment Appeal Tribunal (EAT) dismissed the appeal, claiming that it is not an irrelevant consideration. The EAT did warn that if a tribunal were to assess and weigh up the decision of extending a limitation period with taking into consideration the merits of the claim, it must do so by following the correct protocols and with reference to identifiable factors and take into consideration that they may not have all the evidence in front of them.

Key points for employers to note

• The decision provides greater protection to employers and tightens the limitation periods for litigants in person who may be unsure on their time limits to bring a claim to the ET.
• However, litigants in person must still be given a fair opportunity to advance their claim and ET’s will provide fair allowances to parties who are representing themselves.
• It is important for employers to be aware of the fact that claimants can bring claims out of time and succeed in doing so. Equally, it is important for employers to know that they will be able to respond to this by drawing upon the weakness of the claim.

If you have any questions about this article, please get in touch with a member of the Employment team.