Going to tribunal: case study
Sarah-Marie Williams of Clyde & Co continues a series of articles on going to tribunal with a case study that looks at the issue of time limits.
Save Time Ltd is a company in the insurance industry. Jane, who works in the HR team, took Karen, an employee in the company's claims department, through the company's disciplinary procedure, the result of which was the termination of Karen's employment. The company issued its decision and Karen informed it that she wished to exercise her right to appeal. Jane now believes that Karen intends to commence proceedings against the company for unfair dismissal. Jane has been reading up on tribunal claims and is aware of the three-month time limit for bringing claims. She delays the appeal in an attempt to exceed the three-month time limit. She believes that this will prevent Karen from being able to bring a claim.
Is Jane correct about the time limit for lodging an unfair dismissal claim at the tribunal?
The time limit for lodging an unfair dismissal claim at the tribunal is indeed three months from the effective date of termination. However, Jane seems unaware of the statutory dispute resolution procedures that were introduced by the Employment Act 2002. If the procedures apply, this can have an impact on the time limit, which may be extended beyond the initial three-month period. Where Karen has reasonable grounds for believing that the disciplinary procedure is still ongoing at the time when the normal three-month time limit would expire, the tribunal will extend the time limit by a further three months.
Can Karen commence proceedings against the company once she is in receipt of the disciplinary appeal decision?
Where one of the statutory grievance procedures applies, an employee may not, generally, commence proceedings in the tribunal unless he or she has first submitted a written grievance to the company (step one under the statutory grievance procedure) and waited 28 days. However, where a complaint is about an actual or a contemplated dismissal (not including a constructive dismissal), the statutory grievance procedures do not apply. As Karen's complaint is about the company's decision to terminate her employment, she is not required to submit a written grievance and may proceed directly to the tribunal to lodge her unfair dismissal claim.
Karen commences proceedings for unfair dismissal against the company. The tribunal writes to the company to inform it of this and that the time limit is 28 days for responding to the claim. The tribunal encloses an ET3 form for the company to use to set out its defence. The company's HR director is away on sick leave and the tribunal's letter is handed to Jane in his absence. Jane is annoyed that, despite her efforts, Karen's claim has been accepted by the tribunal. She is unaware of the principle of extension of the three-month time limit to allow a disciplinary procedure to be completed. Believing the tribunal's time limits not to be as strict as she had thought, she places the letter in her drawer and awaits the HR director's return.
Is Jane correct in thinking that the 28-day time limit will not be strictly adhered to by the tribunal?
No. If the 28-day time limit passes without the tribunal receiving either the completed ET3 or an application to extend the time limit for submitting it, the company may be prevented from being able to defend its actions. The tribunal will be entitled to exercise its discretion to issue a judgment in default, which means that the company will be prevented from continuing to participate in the proceedings.
The HR director returns to the office on the last day before the expiry of the 28-day time limit. In an attempt to set out the company's defence as quickly as possible, he writes an eight-page letter to the tribunal setting out, in detail, the events surrounding the termination of Karen's employment and the procedures that were followed by the company. He faxes the letter to the tribunal and at the same time requests an extension of time within which to present the ET3.
Is it possible that the eight-page letter, submitted within the time limit, will be accepted by the tribunal as the company's defence to the proceedings?
No. A company's defence must be on the prescribed form (an ET3). The company must also provide the required information, which includes its name and address, whether or not it wishes to resist the claim in whole or in part, and, if it wishes to resist the claim, on what grounds. If the HR director had not requested an extension of time it is likely that his actions would have resulted in the company being unable to defend the unfair dismissal claim.
If the HR director had faxed the ET3, would it have been accepted by the tribunal?
Yes. Provided that the ET3 is presented within the time limit and contains all the requisite information, it will be accepted. Sending the ET3 by way of fax or other electronic means is an acceptable way of submitting a defence. The time limit for service of the ET3 runs until midnight on the final day of the 28-day time limit. This is different from the civil courts where documents must be served by 4pm on the final day of service.
How is a request for an extension of time considered by the tribunal?
The tribunal may exercise its discretion to grant a request for an extension of time if it was not reasonably practicable for the party in question to comply with the time limit. In the above circumstances the burden of proof for establishing that it was not reasonably practicable to present the response in time is on the company. The test of reasonable practicability has resulted in a great deal of case law. However, it is a question of fact for the tribunal and the factors that it may take into account will vary from case to case. Reasons put forward in some leading cases include serious illness, which will normally be held to be a valid reason for failure to submit in time, and ignorance of the time limit, or commercial interests, which generally will not result in the tribunal finding that it was not reasonably practicable to present the ET3 in time.
The next topic of the week article will be FAQs on going to tribunal and will be published on 28 January.
Sarah-Marie Williams is a solicitor in the employment team at Clyde & Co (firstname.lastname@example.org)
Further information on Clyde & Co can be accessed at www.clydeco.com