The law says that applicants have to lodge their tribunal claim within three months of the act they are complaining about, unless it was not reasonably practicable to do so. In The Sports PR Company Ltd v Cardona, the Employment Appeal Tribunal (EAT) held that it had not been reasonably practical to lodge the claim on time as the complainant did not know she had made a mistake on the claim form until her complaint was out of time.
Basic facts
Ms Cardona, a litigant in person, lodged tribunal proceedings for unpaid wages on 16 October 2020. In Box 2.1 of the claim form (which asked for the name of her employer), she wrote “Caroline McAteer”. In Box 2.2, she gave the correct address and postcode for the company. In Box 2.3, she provided the ACAS early conciliation certificate number which named the company correctly. In box 5, she gave the dates of her employment as 30 March to 6 August 2020.
On 5 December, she received a letter from the tribunal rejecting her claim under rule 12 of the Employment Tribunals Rules of Procedure 2013 relating to “substantive defects”. In this case, the defect reflected the fact that the name on the EC certificate (The Sports PR Company Limited) was not the same as the name on the claim form (Caroline McAteer), although Ms Cardona had named the company in the details on the claim.
She emailed the tribunal on 8 December rectifying the mistake. After a delay of almost five months, she received a letter dated 13 May 2021 saying that, after a reconsideration of the rejection under rule 13 of the regulations, her claim had been accepted. However, the date of acceptance was now 8 December 2020 as opposed to 16 October. The company, which received notification of the claim in May, argued that as the claim was being treated as having been presented to the tribunal with effect from 8 December, it was now out of time.
Tribunal decision
The tribunal decided, first of all, that the question in box 2.1 asking for the name of the employer or “the person or organisation you are claiming against” was ambiguous and confusing, especially for litigants in person. In addition, having made the mistake of citing the name of her boss rather than the employing company as “the person she was claiming against” Ms Cardona had not been notified about her mistake until after the three-month limitation period had expired.
Given these circumstances, the tribunal held that, under section 23 of the Employment Rights Act 1996 (ERA), it had not been reasonably practicable for her to rectify her claim form in time. As she had acted promptly once she had been notified of the error, the tribunal decided that it could hear the claim. The judge also upheld her wages claim.
The company appealed, arguing that the tribunal was wrong to extend the time limit.
EAT decision
Rejecting the appeal, the EAT held that, having heard from Ms Cardona, the tribunal was entitled to come to the decision that a) her error had been reasonable and b) that it had not been reasonably practicable for her to have presented her claim in time.
Although it could be argued that the practical effect of the decision to accept the application as being in time was to reverse the effect of the original decision to reject it as being out of time, the EAT held that “the tribunal was concerned with applying two different tests in different contexts and on different occasions”.
On the first occasion (which was purely a paper exercise), the judge considered the test under rules 12 and 13 of the Employment Tribunals Rules of Procedure 2013. On the second occasion, the judge heard from the claimant, following which he made findings of fact and then correctly applied the two-stage test under section 23 ERA.
The matter was remitted to the tribunal to recalculate the award that the tribunal had made with regard to her claim for unpaid wages as it contained an error.