Although the law says that claimants have to present their complaints to a tribunal within three months, the process of early conciliation extends the time limit by at least a month. In Miah v Axis Security Services Ltd, the Employment Appeal Tribunal (EAT) held that the time limit for presenting a statutory claim, such as unfair dismissal, could not be extended by rules governing tribunal practice.

Basic facts

Mr Miah was summarily dismissed from his job as a building security manager for Axis on 19 October 2016 (his effective date of termination). Prior to lodging a claim for unfair dismissal he went through the ACAS early conciliation (EC) process (which extends the time for bringing the claim by at least a month), which he started on 5 December. The EC certificate was issued on 16 December, meaning that the last day to present his claim was Sunday 29 January 2017.

Syeds solicitors, who Mr Miah instructed to pursue his claim on his behalf, allegedly sent his claim by recorded delivery on Thursday 26 January. However, it was not recorded as having been received at the tribunal office until Monday 30 January 2017. 

Tribunal decision

The tribunal said that, had the claim been sent by recorded delivery post on 26 January, it could be expected to arrive on Saturday 28 January. As there would have been no one in the office to sign for it, it would not therefore have been practicable for Mr Miah to have presented his claim in time.

However, the tribunal was not satisfied that the solicitors had sent the claim when they said, not least because they could not provide any evidence to that effect. It therefore decided that it had been reasonably practicable to present the claim in time. Indeed, at a subsequent hearing for wasted costs, it transpired that his claim had not been sent until Friday 27 January.

Mr Miah appealed, arguing that Rule 4(2) of the Employment Tribunal Rules of Procedure 2013 applied.

Relevant law

Rule 4(2) states that if a practice direction or an order for doing any act ends on a day other than a working day, then “the act is done in time if it is done on the next working day”. “Working day” means “any day except a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday …”

Section 111 Employment Rights Act (ERA) states that complaints to a tribunal must be presented within three months of the effective date of termination unless it was not “reasonably practicable” to do so.

EAT decision

The EAT dismissed the appeal on the basis that Rule 4(2) only applies to tribunal orders and practice directions, as opposed to a claim for unfair dismissal which was governed by the statutory time limit imposed by section 111 ERA.

To interpret the law in any other way would mean that where time expired on a non-working day (and it was accepted that the claim was presented on the next working day), then the time limit for unfair dismissal cases would automatically be extended in these circumstances. That was not what section 111(2) ERA provided, and Rule 4(2) did not change that position. Parliament had made clear provision for exceptions to the strict application of the time limit within section 111 and rule 4(2) was not one of them.