Case of the week
The clock is ticking. . . . don't be caught out!
Failure to adhere to strict time limits can bring a premature end to your case as Mr Crow discovered in Mr R Crow v J & I Pipework Services
This is a case where the Respondent, J & I Pipework Services raised a preliminary issue, in that it believed the Claimant, Mr Crow was too late in making his claim for unfair dismissal.
In claims for unfair dismissal (and most other claims) a claimant has three months from the date of the alleged wrongful act to make his/her claim1. The three month limit can be extended in circumstances where it was not reasonably practicable to keep to the time limit. There has been much case law on this particular point, but the fact remains that tribunals are fairly strict unless there are compelling reasons to grant an extension.
Background
After his dismissal for redundancy on 17 July 2020, Mr Crow contacted his local Citizens Advice Bureau for advice on his rights. He was advised by the CAB to appeal his dismissal and he contacted the Respondent about this shortly after his dismissal.
He was also advised by CAB that he needed to engage the ACAS Early Conciliation process if he wished to take the matter to a tribunal, which he did on 15 October 2020. He was not advised that there was a time limit for doing so and did not receive any advice on time limits at any time prior to his claim being lodged.
The effect of contacting ACAS and starting the early conciliation process is that it temporarily stops the clock for the three month time limit. This is to give the parties time to sort out the issue(s) without reverting to a tribunal. Conciliation lasts for up to a month and then the clock restarts2 and he is given a further month (in this case).
The Early Conciliation Certificate was issued on 15 November 2020 which allowed Mr Crow to make his claim to the tribunal. He now had until 16 December to lodge his claim, but he waited until 15 January 2021 to do so. He was a month late.
Lodging the claim
Mr Crow did not know anything about the process; he was a layman and had never had any experience of tribunal time limits or procedure. The Tribunal has discretion to hear a claim out of time where they consider that it was not reasonably practicable for the claim to be presented within the three month time limit and it was presented within a further period that the Tribunal considers to be reasonable. The burden of proving it was not reasonably practicable fell on Mr Crow.
Most of us have heard the phrase ‘ignorance of the law is no excuse’. It is an excuse which is often used in time limit cases but rarely if ever succeeds, unless the ignorance is itself reasonable. The test for whether it was reasonable for the claimant to be aware of the time limit is an objective one and the tribunal should consider whether a claimant ought to have known of the correct application of the time limit.
Here’s a quote from Lord Justice Brandon in a leading case3
‘ignorance or mistake will, further, not be reasonable if it arises from the fault of the complainant in not making such inquiries as he should reasonably in all the circumstances have made.’
Mr Crow could not rely on ignorance, nor could he claim an advisor failed to advise him of the time limit. Even if he had retained a legal advisor, and they failed to inform him, he could not have relied on that as an excuse. In his own words he was unknowledgeable and unqualified on the law.
In the same case Lord Denning said:
‘Ignorance of his rights — or ignorance of the time limits — is not just cause or excuse, unless it appears that he or his advisers could not reasonably be expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and he must take the consequences.’
The evidence before the tribunal showed that Mr Crow was not incapable of progressing matters; he raised the issue of an appeal very shortly after his dismissal; he was capable of seeking advice in the period after his dismissal; he was able to timeously engage ACAS Early Conciliation; he was able to lodge his claim online when he became aware of the need to do so.
It was not surprising that the tribunal found his ignorance was not reasonable and it refused to exercise its discretion to extend the time limit.
Extending time is a high hurdle to overcome, and rightly so, otherwise the tribunals would be inundated with late claims. Issues such as this are generally sorted at the preliminary stages of the proceedings, with Respondents raising their objections in their formal response to a claim.
One of the first things I do for a client when they receive a claim is to check and then double check the time limit, because a claim which is held to be out of time will fail as the tribunal simply do not have the jurisdiction to hear it.
So, to those contemplating making a claim - never leave it until the last minute to act!
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Wall's Meat Co Ltd v Khan [1978] IRLR 49