Our next case is about limitation dates. In broad terms, Section 11 of the Employment Rights Act 1996 states that the limitation date to bring an employment tribunal claim is three months less a day following the date of dismissal. The limitation date is extended determined on timing and duration of any ACAS Early Conciliation, our previous case features a table that sums up how a limitation date can move based on these factors.
Like many government departments, the HM Court and Tribunal Service do not consider Saturday and Sunday to be working days – even though many tribunal staff are now working weekends due to budget and resource constraints.
For many Claimants, their limitation date will often fall on a weekend or bank holiday. To avoid the claim being timed out, it is common practice to issue claims before the limitation date, this is especially true if the date falls on a non-working day.
However, Rule 4.2 of the ET Rules 2013 states that a practice direction or an order for doing any act ends on a day other than a working day, the act is done in time if it is done on the next working day.
Therefore, today’s question is:
If a limitation period ends on a non-working day, will it be presented in time if it is presented on the next working day?
Mr Miah, the Claimant, was dismissed by Axis Security, the Respondent on 19th October. He believed his dismissal was unfair and initiated ET proceedings. Based on his Early Conciliation period, the Claimant’s limitation date was 29th January, a Sunday.
The Claimant had instructed solicitors to issue the claim and they were aware of the limitation date. They decided to post the ET1 on 26th January, a Thursday. However, it did not arrive at the ET until 30th January.
The ET held the claim was out of time. The Claimant’s solicitors argued that the claim was sent next day delivery, but the ET noted it did not arrive at the ET on the 27th January, a Friday. The Claimant’s solicitors also had no documents to prove postage was sent on the 26th or that it was sent next day delivery.
The Claimant appealed citing Rule 4.2 of the ET Rules 2013. The EAT rejected the appeal. The ET Rules only applied to ET Orders, such as witness statement exchange or document disclosure. As the limitation date is a statutory deadline, the ET Rules do not apply and the claim must be presented on or before the limitation date, even if it is a non-working day.
The takeaway point:
No, claims must be presented on or before the limitation date. There are circumstances where the deadline to bring a claim will be extended if it was not reasonably practicable to bring the date in time.
However, not posting in time is not one of those circumstances, especially when it was the Claimant’s solicitors! Given ET claims can be issued online, this whole issue would have been avoided if the solicitors had used the online portal instead of posting.