31/12/2007

Employment e-Brief – Time limits for claims. Can Stress Affect Reasonable Practicability?

Angela Brumpton, employment solicitor

The Employment Appeals Tribunal (EAT) has recently overturned an Employment Tribunal’s decision that it was not reasonably practicable for a Claimant to bring a claim of unfair dismissal within the ordinary three month time limit on the basis that she was suffering from stress, and that she believed that a Police investigation should be concluded before lodging her claim.

As you should all be aware, the ordinary time limit for lodging an unfair dismissal claim at the Employment Tribunal is 3 months from the date of termination. This time limit may only be extended where a Claimant can satisfy an Employment Tribunal that it was not reasonably practicable for him or her to bring a complaint within the requisite period. The burden of proof rests with the Claimant, and the test is a strict one.

The Claimant in the case of Asda Stores Limited v Kauser was dismissed by the Respondent company for stealing. The Company had alerted the Police, who then arrested the Claimant and investigated the matter. The time limit for lodging a claim at the Employment Tribunal for unfair dismissal expired on 21 September 2006. The Claimant discovered that the Police did not intend to bring any charges against her on 19 September 2006. The Claimant asked the Employment Tribunal to exercise its discretion to allow her claim for unfair dismissal out of time on the basis that she did not think she could commence proceedings whilst the Police investigation was ongoing, and she was suffering from stress as a result of her arrest.

The Tribunal at first instance allowed the Claimant’s claim to proceed, and the Respondent company appealed against that decision.

The EAT held in favour of the Respondent Company. They did not agree with the Employment Tribunal’s finding that it was not reasonable for the Claimant to present her claim in time on the basis that she was suffering from stress. In order to rely on the defence that she was suffering from a medical impediment, “stress” was not sufficient. The EAT stated that stress cannot be compared to illness or incapacity and there would be more needed to establish a medical impediment.

With regard to her claim that she believed she couldn’t bring a claim at the Tribunal before the Police investigation had been concluded. The Tribunal concluded that it was reasonable to have expected the Claimant to have made enquiries before 19 September (the date she received word from the Police) about the practicalities of bringing a claim when she believed that she had been unfairly dismissed and that she had a right to bring a claim. She could have made enquiries of the Citizens Advice Bureau, the Tribunal or any other legal adviser, in the interim period. She could then have obtained a claim form and prepared to send it after the Police investigation was out of the way. The delay from 19 September until 10 October 2006 was inexplicable. She could have lodged her claim on 19, 20, or 21 September.

This decision will be welcomed by employers who face defending Pre-Hearing Reviews at their own cost where a Claimant has not lodged a claim in time and blames stress and misapprehension as the cause of the delay.

For further information on any procedural or substantive employment law issues contact any member of the employment team.