Time Limits for Employment Tribunal claims

Tribunal fees

Tribunal fees were introduced on 29 July 2013.   However, on 26 July 2017 the Supreme Court ruled that fees were unlawful and you no longer have to pay a fee to bring a claim.

Early Conciliation

Almost all Employment Tribunal claims are required to comply with new rules on pre claim conciliation by ACAS, called Early Conciliation.  It is very important to understand that Early Conciliation makes some changes to the normal time limit rules set out below.

Time limits

It is essential that the tribunal claim form (known as an ET1) arrives at the tribunal office on or before the time limit for that claim.

Different claims have different rules about time-limits. Discrimination claims are particularly complicated. The following is only a brief summary and is subject to the Early Conciliation rules. For more detailed information seek advice from an employment adviser or look at other sources of help.

For unfair dismissal claims, the time limit is 3 months less one day form the effective date of termination (referred to as the “EDT”). The effective date of termination is usually the last working day.

If an employee is dismissed with notice, the EDT is the date when the notice expires. 

If an employee is summarily dismissed for gross misconduct, the EDT will be the date of dismissal. For example, if an employee is summarily dismissed on 20 November, a claim would need to be made by 19 February (within three calendar months of 20 November).

If an employee is dismissed without notice but is given a payment in lieu of notice, the termination date is the date on which the dismissal takes effect. 

For discrimination claims at the employment tribunal, the time-limit is 3 months less 1 day from the act of discrimination, for example:

• Decision not to promote Claimant because she is pregnant. Decision made 8 September 2017. Last day for presenting Claim – 7 December 2017.

The time limit usually runs from when a decision not to promote or appoint is made, and not from when the decision is communicated to the worker.

If the Claimant wants to complain about several isolated or unconnected discriminatory actions the time will run from each of the separate incidents.

If there have been several connected incidents of discrimination over a period of time, the discrimination can be said to be continuing, in which case, time limit starts to run at the end of that period in time. This is known as “continuing act”. The test for continuing act is whether an employer is responsible for an “ongoing situation or a continuing state of affairs” in relation to the acts of discrimination, as opposed to a series of unconnected or isolated incidents.

It is up to the tribunal to decide if there has been a continuing act, and they often do not make this decision until the final hearing when they can take all the parties’ evidence into consideration. To avoid wasting time preparing for claims that may later be found to have been brought out of time, you should consider this point carefully and seek legal advice if possible at the start.

For more information on continuing acts, see here

The Claimant can refer to earlier incidents which are out of time as supporting evidence for later acts of discrimination which are in time.

The tribunal has limited discretion to allow in late Claims (those outside the time-limit). The test for this is different depending on whether the claim is about discrimination or something else. If you are worried that you are out of time to make a claim, act quickly and, if possible without adding to the delay, seek specialist advice.

If your claim relates to unfair dismissal, the tribunal will apply the “reasonably practicable” test in deciding whether or not to allow a late claim to proceed. The “reasonably practicable” test is a hard test and late claims will only be allowed to proceed in extremely limited circumstances. “Reasonably practicable” means the same as reasonably possible and the tribunal will tend to focus on the practical hurdles faced by the claimant rather than any subjective difficulties. Not being aware of the time limits will not be a valid reason, nor will receiving incorrect advice from a professional adviser. In fact, it is rare for a tribunal to allow a late claims under the “reasonably practicable test” for any other reasons other then an illness which made it physically impossible to submit a claim and postal delays.

If your claim relates to discrimination, the tribunal will apply the “just and equitable” test in deciding whether to extend the time limit in order to accept a late claim. This gives tribunal’s a wider discretion to extend time that the “reasonably practicable” test and the tribunal will consider various factors which could include:-

• the length and reasons for the delay
• whether any evidence has been lost or deteriorated as a result of the delay
• whether the Respondent had provided information when asked
• whether the Claimant acted promptly when the claimant knew of the possibility of bringing a claim
• steps taken by the claimant to obtain advice

When considering the “just and equitable” test, the tribunal can take into account incorrect advice given by an advisor. A tribunal can also take into account the strength of the claim.

If the claim is out of time, the tribunal will usually list the case for a preliminary hearing to consider whether it should be struck out (not be allowed to proceed). The Claimant will be required to provide a statement setting out why the claim was out of time.

If you are making a statement in support of an application to extend time you should include as much information as possible as to why you failed to submit your claim in time. You will also need to demonstrate that once you had the relevant facts, you acted quickly in bringing your claim.

It is important to remember that it is hard to persuade a tribunal to allow in late claims. Never let a deadline pass relying on this. Even if a worker and employer are going through an internal grievance or disciplinary procedure, this does not generally extend the time limit by which the Claim must be made to a tribunal apart from in very limited circumstances. You should be wary of long-drawn-out procedures by your employer in case it takes you outside the time limit for making a Claim. If there is an ongoing internal process, you and/or your employer can ask the tribunal after you have lodged your Claim for it to be paused (“stayed”) while the internal process is completed.

Time limits can be tricky and we recommend getting specialist advice if you are unsure about when the time limit is to bring your claim.

This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. Please call our helpline for more details. If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.

If you have further questions and would like to contact our advice team please use our advice contact form below or call us.

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