Statutory Dismissal Procedure - Extension of Time

The EAT (Burton J. sitting alone) has handed down an important judgment dealing with extensions of time for unfair dismissal claims when the employee has put in an internal appeal, and the appeal has been dismissed close to the end of the normal limitation period.

In Ashcroft v Haberdasher's Askes' Boys School, the employer dismissed Mr Ashcroft's appeal against dismissal at 6pm on the last day of three-month period. The effect of this was that, when the normal limitation period expired six hours later, at midnight, there was no pending appeal and therefore no automatic extension of time by three months.

Burton J. held that regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 effectively repealed the rule in Palmer v Saunders v Southend-on-Sea Borough Council (1984), namely that the existence of an appeal does not mean it is 'not reasonably practicable' to bring a tribunal claim within time.

The EAT stated, at para. 21, that Mr Ashcroft had the anticpated protection of regulation 15 (extending time for three months) up until 6pm on the last day of the limitation period, and given the purpose of the statutory disciplinary and grievance procedures was to discourage tribunal proceedings before an internal appeal was dealt with, it was not reasonably practicable to lodge tribunal proceedings within the normal three month period.

This case reaches the same result - but by a different route - as last month's decision in Royal Bank of Scotland v Bevan (see bulletin 6/12/07). Neither case was considered in the other.