Out of Time Tribunal Application

[EmmaA]

I would appreciate comments on the following and any case law we can quote.

 

An employee was dismissed for gross misconduct in April 08 and the tribunal application was lodged in November 08, over 4 months out of time. As the police were involved, the employee is stating that they were waiting for the outcome of the police investigation to conclude before lodging an application.

 

We now have to attend a Pre-Hearing Review to discuss whether the claim is out of time, and hope that the case will be struck out.

 

We will be representing ourselves:

1. What should we state in a written representation / verbal argument?

2. Is there any case law we can quote?

3. Does the employee have a strong case to proceed?

[godpikachu]

it would help if you gave a few more details.

 

gross misconduct in relation to what?

what was the outcome of the police investigation?

were any charges brought?

what evidence is there of gross misconduct?

how long had the employee been working for you?

[p_cas]

I do have a recollection of reading about a case being allowed that was out of time, but cant remember the details and I cant look it up at present, sorry! Not much help I'm afraid.

 

I think in your position I'd be looking to get legal advice. I can understand you wanting to represent yourself but I think it may be false economy. See if any of your business insurances cover you for legal costs.

 

There's a lot of decent people on here but the slant is usually from the employee's perspective and I feel you might struggle to get a definitive answer as an employer.

 

Good luck though as I know from experience how easy it is for (ex)employees to bring spurious claims which can cost you a lot of time and money - especially for small businesses.

[chesham]

1. What should we state in a written representation / verbal argument?

2. Is there any case law we can quote?

3. Does the employee have a strong case to proceed?

 

1) Depends on what they were dismissed for and your argument against it

2) No case law, very tricky to find in tribunals as they are not usually recorded very publicly unless transferred to higher court.

3) Depends on what they are contesting and why.

 

They will need a good and valid reason for the delay in lodging the claim - normal excuses are family death, being in hospital etc. Whether or not police investigation is a good enough one may depend on the outcome? If they take no further action or decide no crime existed, you could use that to show there was no valid reason for delay.

 

As long as the proper grievance rules were followed and there was evidence beyond doubt that they were guilty of the accusations, then there isn't really a claim at all.

[Goldlady]

I did an out of time tribunal application claiming I had suffered from post natal depression. It was disallowed. It was years rather than months and the only reason I did it was because ex employer tried to bankrupt me and I did have a very valid case for sex discrimination cos they terminated my employment when I was on maternity leave.

 

I think to get 'out of time' accepted is pretty difficult. Don't think it will depend on case law but on the opinion of the chairman.

 

I have been on both sides of the fence, mainly the employer side, several times. The problem with tribunals is that it is very dependent on what happens on the day, particularly if it is based on a series of facts rather than employment law. Having said that I do think that the chairman are very fair. If the employee is taking the pee with this claim then you should be OK.

[chesham]

Depends on the judge as well! I know a JP who really is on the side of the employees and will therefore be more lenient on certain circumstances given by the employee, but then there are others who believe that the great commerce of the UK is more favoured!!

[elche]

2) No case law, very tricky to find in tribunals as they are not usually recorded very publicly unless transferred to higher court.

 

I agree that most of the case law on this issue is from EAT's or Court of Appeal. However, considering that ET's should be bound by both these sources, and considering you can cite both these sources in an ET, I think it would be more accurate to say that a wide body of case law exists regarding the presentation of claims by an applicant who is out of time e.g.

 

Palmer and Saunders v Southend-on-Sea Borough Council [1984]

Riley v Tesco Stores Ltd [1980]

Wall's Meat Co Ltd v Khan [1979]

Birmingham Optical Group plc v Johnson [1995]

Biggs v Somerset County Council [1996]

 

I could go on.....

The general rule is that an employee must submit a claim for UD within, no later than, 3 months from the EDT. ERA 1996 s.111(2)

 

If an employee is summarily dismissed for GM then the EDT = that day.

 

However ET's have discretion to extend, ".... the time for presentation. ... a tribunal may consider a complaint presented 'within such further period as [it] considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of [three] months'. This is the formula for unfair dismissal claims... (in addition), a tribunal may extend the time if it considers it just and equitable to do so in all the circumstances..."

 

Generally, the cases have examined:

 

a) Not Reasonably Practical - advisors at fault, discovery of new facts etc

b) Just and Equitable - the tribunal can take into account anything which it judges to be 'relevant'

 

As a rule of thumb, it is quite rare for an extension to be granted, although as the above shows, not impossible.

 

This has been a litigated area over the years, and as you are an employer, you should see some professional advice.

 

Che

Edited February 21, 2009 by elche