There have been a couple of cases dealing with extending time for the purposes of submitting a claim in the employment tribunal over the past month.
In the first, Owen v Network Rail, the Employment Appeal Tribunal (EAT) held that an employment tribunal was wrong to find that it could not consider whether it was just and equitable to extend time to bring a discrimination claim where the claimant had provided no evidence to explain the late submission of the claim.
The claimant was employed as signaller. She presented an employment tribunal claim for sex discrimination and harassment on 4 June 2020 complaining about a number of incidents of allegedly sexist behaviour by male colleagues between November 2015 and May 2017. She also complained about the way in which her grievance about that behaviour had been handled in the period from November 2017 to February 2020.
The tribunal accepted that various incidents occurring up to May 2017 might be discriminatory on the grounds of sex, but found that the handling of the grievance did not form part of a "continuing act of discrimination" as the failings were not due to the claimant's sex. This meant that the claim in respect of the earlier incidents was out of time unless it was just and equitable to extend time and so the tribunal dismissed the claim. It observed that the claimant did not provide any information about why she delayed bringing her claim and so, without an explanation, it was not possible for the tribunal to extend time.
On appeal the EAT considered the relevant case law, and pointed to the decision in Concentrix CVG Intelligent Contact Ltd v Obi where the EAT had concluded that the absence of any explanation in the evidence for the delay in presenting the claim does not mean that the tribunal is bound to refuse an extension and, while it is a relevant consideration, it is not necessarily decisive. The EAT upheld the appeal and remitted the case to the tribunal to consider again whether it was just and equitable to extend time.
Meanwhile, the EAT has held in Sports PR Company Ltd v Londono Cardona that an employment tribunal had been entitled to extend time for a claim to be re-presented with the correct name of the respondent because of a reasonable mistake on the claim form by a litigant-in-person.
The claimant brought a claim for unpaid wages. Although her Acas early conciliation certificate correctly named her employer, she had put the name of one of its directors in the space for the name of the employer (in box 2 of the ET1 form). The tribunal rejected the claim under rule 12 of the Employment Tribunal Rules, and the claimant applied for reconsideration, having supplied the correct name of the employer. The judge held that although the original decision to reject the claim had been correct, the claim had been validly presented on the date the error was rectified. The employer then argued that the claim was now out of time. The tribunal held that it had not been reasonably practicable for her to have submitted the claim against the correct respondent within the time limit, but she had done so within a further reasonable period.
The EAT agreed that the mistake was reasonable and had rendered it not reasonably practicable to have presented the claim in time. It noted that the ET1 form, which asks the claimant to "give the name of your employer or the person or organisation you are claiming against" is "somewhat ambiguous and confusing especially for litigants-in-person".
Take note: These two decisions show a move away from a prescriptive approach to time limits. Just because an explanation has not been received about why there has been a delay in the submission of a claim it won't automatically follow that the tribunal can't extend time. Similarly, where an error has been made on a claim form, which is subsequently rectified, the mistake (provided it is a reasonable one) will not generally be enough to render the claim out of time.
