Labour & European Law Review Weekly Issue 441 14 October 2015
The law states that unfair dismissal claimants must present their tribunal claims within three months of the effective date of termination and pay a fee (or apply for remission). In Software Box Ltd v Gannon, the Employment Appeal Tribunal (EAT) held that tribunals can hear a second claim submitted late with the correct fee, even if the same claim had already been submitted within time but minus the fee payment.
Ms Gannon, who was dismissed with effect from 4 October 2013, lodged a claim for unfair dismissal on 24 December which was within the three-month time limit. As she was in receipt of Jobseekers’ Allowance, she sent a formal application for remission of the tribunal fee on the same day. However, when she found out that the Central Processing Unit (CPU) had not received it, she sent a second application on 13 February 2014.
She then received a letter dated 25 February rejecting her claim for remission of fees. Although the letter said that a Notice to Pay was enclosed, none was. The CPU sent a second letter to her legal representative enclosing the Notice, but the fee was not paid as they were no longer acting for her. By the time she contacted the CPU again, the date set out in the Notice to Pay had passed. She immediately borrowed the money and re-submitted the claim again with the fee.
Section 111 of the Employment Rights Act 1996 states a) that a tribunal shall not consider a complaint unless it is “presented” … within three months beginning with the effective date of termination or b) “within such further period as the tribunal considers reasonable … [if] it was not reasonably practicable for the complaint to be presented” within three months.
The judge held that, because Ms Gannon had failed to pay the fee on time, her claim had not been accepted and therefore had never been validly presented. There were three factors that had prevented her from doing so - the complexity of the fees regime; the failure to send a Notice to Pay; and her medical condition (alcohol dependency syndrome, together with anxiety and depression). Given those factors, it concluded that it was not reasonably practicable for her to have lodged her claim in time.
The company appealed on the basis that Ms Gannon had, in fact, presented her claim within three months of her dismissal. The judge could not therefore hold that she had not presented a claim in time; nor could he decide that the way to resolve the rejection of her claim was by presenting another one, out of time.
The EAT criticised the tribunal judge for talking about a claim being capable of being “accepted” as the notion of “acceptance” did not appear anywhere in the rules. Instead it held that once a claim is presented, it is presented; it cannot be “accepted” although it can be rejected for various reasons. Nor had the judge dealt with the company’s argument that she had, in fact, lodged her claim within time. As such, although the tribunal had jurisdiction as a matter of principle to hear a second claim “traversing the same ground” as the first, the judge’s reasoning was flawed and the appeal had to be allowed. It remitted the case to the same tribunal judge to consider again.
The EAT also observed that Ms Gannon could apply for an extension of time to pay the fee or alternatively the tribunal could entertain an application to extend time for her first claim, allowing her the benefit of two other approaches.
This is a case of the judicial system trying to save the claimant from unfairness which it created, but having to do so within the rules that bind it. The reasoning is therefore somewhat involved and is not an easy read. The bottom line however is that if a fee payment deadline is missed then it is usually tidier to seek an extension to that deadline, although lodging another ET1 also remains a possibility.