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An employee left, threatening to sue us, over four months ago. Since then we have heard nothing. Are we off the hook?

Unfair and constructive dismissal claims must be made within three months (three months less at least one day, or the claim will be barred) of the effective date of termination of employment (although there is provision to extend the deadline in certain circumstances). Claims are being scrutinised much more rigorously, and it is unlikely that one that is out of time will be allowed to proceed.

But if you receive an ET1 form out of time in respect of your former employee, complete and return it, but clearly state as part of your defence that the claim is out of time. You should also ask for a preliminary hearing to determine the issue of its being out of time.

The Employment Tribunal has the discretion to extend time if the employee can show that it was not reasonably practicable to present the claim within the three-month period or, in some discrimination cases, if it is ‘just and equitable’ to do so.

There have been several Employment Appeals Tribunal (EAT) findings which give employees more leeway.

  • Employment Tribunals have discretion to allow some discrimination cases to proceed, even if the grievance to which they relate is not submitted until after the initial three month time limit has expired.
  • Where an employer completes investigations in relation to an internal appeal against dismissal just hours before expiry of the time-limit for bringing an unfair dismissal claim, it is likely the employee will succeed in showing it was not ‘reasonably practicable’ to bring their claim within the original three-month period, and an extension of the time limit will be granted.

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Contact Helix Law on 01273 761 990 or email: [email protected]