Out of time

Beasley v National Grid Electricity Transmission

Section 111 (2) of the Employment Rights Act 1996 says that unfair dismissal claims must be presented to a tribunal within three months of the date of termination. Tribunals can only extend that period if satisfied that it “was not reasonably practicable” for the claimant to comply.

In Beasley v National Grid Electricity Transmission, the Employment Appeal Tribunal (EAT) said that tribunals have to apply the “established principles” even if a claimant is only a couple of minutes outside the deadline.

Basic facts

Mr Beasley was dismissed on 7 February 2006 which meant that his deadline for submitting an unfair dismissal claim was 6 May. Having received conflicting advice as to whether submitting a grievance would extend the period by 28 days, he was told by his solicitors on 5 May to be on the safe side and submit within the three month limit.

He filled in the form online on 6 May and sent it by e-mail to the tribunal at 23.44 that evening. However, because he typed the address wrongly, the e-mail was returned to him at 23.45. He then sent a test message at 23.47 to the correct address, before forwarding the claim form at 00.01.28 on 7 May. That meant his form was received 88 seconds outside the deadline.

Tribunal decision

The tribunal chair found against him, saying that he could not rely on the fact that he had received conflicting advice to explain his late claim form. He had received all the documentation indicating that the three month limit applied and had been told specifically on the day before that he should submit his claim immediately.

The chair said that it was only when the claim arrived at the tribunal “that it was deemed to be presented.” It was his failure to type in the correct address that had led to the delay, exacerbated by his decision to send a test message three minutes before midnight rather than the actual form.

EAT decision

And unfortunately for Mr Beasley the EAT agreed with the tribunal. It said that although he was less than two minutes late in bringing his claim, the tribunal “had to apply the established principles” even though the employer did not suffer any prejudice as a result of the delay.

And although the tribunal had not expressly referred to whether it had been “reasonably practical” for him to comply with the deadline, the EAT was satisfied that it had considered the issue in some detail given that:

• Both counsel for Mr Beasley and the company referred at length in their submissions to the “reasonable practicability” issue
• The tribunal made a number of findings of fact that were directly relevant to the issue
• The tribunal had also made explicit reference to a case which is an authority on the issue of “reasonable practicability”

It emphasised that the question of whether or not it is reasonably practicable for a claim to be presented in time “is pre-eminently an issue of fact” for the tribunal which is why it is so hard for claimants to successfully challenge their decision.

The EAT accepted that the decision must seem very harsh as he was only a few minutes late and very easy on employers “who are [then] excused from defending their actions by reason of a delay which has not prejudiced them in any way.” However because of the wording in section 111(2) of the 1996 Act and decisions in previous cases, it had to dismiss the appeal.