If you ask most people involved in dealing with employment law matters they will correctly tell you that the time limit for commencing a claim for unfair dismissal is three months from the date of termination of employment. As we have seen on many occasions the time limit is applied very strictly and just about the only basis on which it can be extended is if it was not reasonably practicable for the claim to lodged within the time available.
The admittedly unusual case of Miss B Higgins v The Home Office and The Attorney General shows the extent to which a time limit can be extended in appropriate circumstances. Miss Higgins claimed that she was constructively dismissed by her employer in December 2007 but she did not present her complaint of unfair dismissal to an employment tribunal until 27 January 2014. The grounds of claim were pretty unclear and there was at least one inadmissible claim for compensation for loss suffered by the claimant’s mother. Unsurprisingly the claim was rejected by an employment judge as an abuse of process because (i) it was brought outside the applicable time limits,(ii) the remedies sought did not appear to be those that a tribunal could award and (iii) the claimant did not appear to be claiming unfair dismissal. Miss Higgins appealed to the Employment Appeal Tribunal.
She had worked as an immigration officer for the Home Office from 2003 until December 2007. She maintains that in the course of her employment she applied for a position with MI5. Judge Serota QC noted that in the course of her employment Miss Higgins had mental health issues and in October 2007 had been admitted to a psychiatric hospital or unit where she had remained for several days. She tendered her resignation on more than one occasion but was allowed to withdraw the resignation. However, when she resigned on 26 or 27 November 2007, expiring on 23 December, she was not allowed to withdraw the resignation. This was the basis of her claim for constructive unfair dismissal.
In early 2008 she instructed solicitors in connection with her potential claim but maintained that she was too unwell to commence proceedings. The standard three months’ time limit expired on 22 February 2008 but the ET1 was not lodged until 27 January 2014.
Judge Serota noted that the claim as set out in the ET1 was “somewhat unstructured, but one can just about make out a case for constructive dismissal”. After the ET1 had been rejected there was a request for reconsideration and this was accompanied with a psychiatrist’s letter explaining why the claim was made out of time.
Dealing with the grounds for rejection of the claim in turn Judge Serota determined that the employment judge was wrong to say that the remedies claimed were outside the jurisdiction of the employment tribunal. Some were but others were not. The judge had failed to identify the claims for compensation and re-employment contained within the application.
As for the second ground the judge was also wrong to say that there was no claim for unfair dismissal. The claimant had ticked the box to show that she was claiming unfair dismissal and also ticked the box claiming a remedy.
Finally, and most notably, the judge was wrong to have held that the claim was an abuse of process because it was so long out of time. Judge Serota pointed to the extension available if it was not reasonably practicable for the complaint to be presented in time and that the words “not practicable” should be given a liberal interpretation in favour of the employee. He was of the view that the overriding objective in employment tribunal proceedings requires the tribunal “to have regard to any disability of which it knows on the part of a party”. The order was drastic and was made without a hearing and submissions and the reasons given were inadequate. the employment judge should have taken into account that the claimant may have had significant mental health issues and that she may have lacked capacity under the Mental Capacity Act 2005. There was evidence available that for six years the claimant was regarded by a consultant psychiatrist as unable to conduct proceedings.She may also have lacked the necessary competence to take part in the proceedings. Accordingly the original order was set aside and must now be reconsidered by a different employment judge.