Missing Unfair Dismissal Limitation Deadline

El-Kholy v Rentokil Initial Facilities Services

In this case the Employment Appeal Tribunal (“EAT”) were asked to consider whether or not a claimant could successfully argue that it was not reasonably practicable for him to present a claim of unfair dismissal in time, when he had instructed advisers to act for him.

The EAT followed the leading case authorities on this area and decided that the time limit could not be extended in these circumstances. The EAT found that as the claimant had instructed the solicitors, their fault defeats any attempts by him to run this argument.

The facts of this case are that the claimant was employed by the respondent as a cleaner from 15 May 2008 until his dismissal on 4 October 2011. The claimant instructed solicitors on 15 October 2011 to help him to appeal against the decision. By letter dated 6 January 2012 the claimant was informed that his appeal had been dismissed. At this stage, the limitation period had already ended, but the Claimant’s solicitor still wrote to the respondent informing them of the claimant’s intention to bring an Employment Tribunal claim. In mid January 2012 the Claimant’s solicitor suggested that the claimant should instruct a specialist employment solicitor; the claimant did this, met with the solicitor on 23 January 2012 and a claim was submitted to the Employment Tribunal that same day. The claim was therefore around three weeks out of time.

The EAT found that each case turned on its own facts, and whereas here the claimant had not been told of the requirements for an unfair dismissal claim or what the limitation period was by the first solicitor, he was still not able to successfully argue that the reason the claim was late was that it was not reasonably practicable for him to present it in time.

The EAT concluded that the claimant’s remedy in this case was against his advisor for their failure to submit the claim in time, and not against the respondent.

This case is therefore a reminder of the importance of time limits in the Employment Tribunals, not only for issuing claims, but also for businesses in responding to claims.