Time limits in employment tribunals: a cautionary tale

The case of Cygnet Behavioural Health v Britton [2022] EAT 108; [2022] IRLR 906 provides a reminder of the strict test for extensions of time in cases of unfair dismissal.

Background

The claimant was a physiotherapist who was dismissed during his probationary period. He sought to complain that the dismissal had been automatically unfair, the reason being because he had made protected disclosures.

However, the claim was presented 62 days late.

The employment tribunal therefore had to consider whether or not it could use its discretion to hear the claim. In order to do so, the tribunal would require to be satisfied that it had not been “reasonably practicable” for the claimant to present his claim in time and that he had presented his claim within a reasonable period thereafter. 

Decision of employment tribunal

The tribunal found that it had not been reasonably practicable to present the claim in time. It also found that the claimant was reasonably ignorant of the time limit, the primary cause being the claimant’s dyslexia.

In addition the claimant was dealing with a fitness to practise investigation by his regulatory body and his mental health had deteriorated. The tribunal further found that the additional delay of 62 days was reasonable in light of the time and effort that the claimant was expending dealing with the investigation, exacerbated by his dyslexia.

Therefore, the claim was allowed to proceed. The respondent appealed.

Decision of the Employment Appeal Tribunal

The EAT held that the tribunal was wrong to find that it had not been reasonably practicable for the claimant to present the claim in time.

Mr Justice Cavanagh stated that “the fact that a claimant has suffered from depression and the fact that a claimant is dyslexic does not mean automatically that it is not reasonably practicable for him to be able to claim during the primary limitation period, and in particular, that it was not reasonably practicable for him to be aware of the time limits”.

In this case, it was perverse for the tribunal to find that the claimant’s mental health problems, dyslexia and his focus on the fitness to practise investigation meant that it was not reasonably practicable for him to make himself aware of the time limit prior to it expiring.

The claimant had been able to do a great deal during the period from his dismissal. For example, he had been able to work as a locum, move house, deal with ACAS, and ask ACAS about how he should go about starting a claim.

In the words of the EAT, “it flies in the face of reason to conclude that the claimant was able to do all of this and yet was not able to ask somebody so as to find out the time limits for a tribunal claim”.

The EAT also found that it made no sense for the ET to find that the claimant could not have researched the time limit on the internet, or as the EAT put it, “type a short sentence into a search engine”. The bar was set low.

Comment

This case reinforces the importance of abiding by time limits in employment tribunal claims and reaffirms the hard line that tribunals can take where time limits are not met. While there is a more forgiving statutory test for extension of time in respect of other types of claim, such as discrimination, rules can be complex, particularly in light of the ACAS early conciliation requirements.