Although tribunal claims should normally be brought within three months of the act complained of, courts can extend that time limit in certain circumstances. The Employment Appeal Tribunal (EAT) held in Higgins v Home Office and anor that the tribunal should not have struck out a claim for constructive dismissal as an abuse of process even though it was brought six years after the claimant resigned.

Basic facts

Ms Higgins worked as an Immigration Officer for the Home Office from 2003 until she resigned in November 2007, following a period in a psychiatric hospital in October that year when she suffered from an acute psychotic illness.

In January 2014, she submitted an ET1 form claiming unfair constructive dismissal, almost six years out of time. She complained of harassment, being off sick with reactive depression and being victimised after raising concerns about comments made to her by her line manager. She resigned when she thought she was going to be moved to another office. On the form, she indicated that she wanted to be re-engaged but also wanted compensation for her mother.

Tribunal decision

The employment tribunal judge rejected her claim under Rule 12 of the Employment Tribunals Rules of Procedure 2013 as an abuse of process because:

  • it was brought outside the three month time limit
  • the remedies she asked for did not appear to be ones that a tribunal could award, and
  • she did not appear to be claiming unfair dismissal.

Ms Higgins submitted an application for her claim to be reconsidered along with a letter from her consultant psychiatrist explaining that her claim was out of time because of ill health, but this was also rejected. She appealed against this decision.

EAT decision

Relying on the decision in Wallis v Valentine, the EAT held that striking out a valid claim should be the last option adopted by a tribunal. Although courts have the power to strike out even when there has been a clear abuse of process, it does not follow that that is always the correct response. Instead “[i]f the abuse can be addressed by a less draconian course, it should be.”

In this case, the EAT held that as orders under Rule 12 should only be made in the most plain and obvious cases, it was a “drastic” decision for the judge to make an order without hearing any submissions. Borderline cases or those which lack clarity or where there is a muddle involving a litigant in person, should be disposed of under Rule 27 which gives claimants the chance to make written representations as to why their claim should not be dismissed.

In terms of the lateness of the claim in this instance, the judge had not taken into account the significant mental health issues that Ms Higgins had suffered and the fact that she had submitted a letter from a consultant psychiatrist confirming that she had not been well enough to cope with bringing proceedings over the previous six years.

The mere fact that the ET1 was presented out of time did not mean that it was an abuse of process as tribunals have the power to extend time for presenting proceedings if it was not reasonably practicable for the claimant to bring them within the appropriate three-month period. This discretion should have been interpreted liberally by the tribunal but clearly was not.

The EAT therefore allowed the appeal and set aside the order. It remitted the case to a fresh tribunal to consider the question of rejection of the claim form under Rule 27 and whether Ms Higgins had the capacity to conduct proceedings.