Presenting a Tribunal Claim

Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary

Was it open to an employment tribunal to find that it had not been reasonably practicable to present a complaint within 3 months where there had been a previous abortive (but timely) claim dealing with the same subject-matter?

Yes, held the EAT in Software Box Ltd v Gannon. 

Mrs Gannon, who suffered from alcohol dependency, anxiety and depression, presented an ET1 complaining of unfair dismissal together with an application for remission of fees. A series of administrative bungles at the employment tribunal meant she didn't learn that she had been refused remission until after the date for payment had passed, and her ET1 had been rejected. As soon as she did learn, she borrowed the fee and presented a further ET1 out of time.

Counsel for the Respondent argued that it wasn't open to the employment tribunal to find that it hadn't been reasonably practicable for Mrs Gannon to present her complaint in time because she had previously done exactly that.

Langstaff P wasn't having any of that. The question was whether it had been practicable for Mrs Gannon to present the particular claim - i.e. her second claim - in time. The Employment Judge hadn't considered that question properly, so the case was remitted.

The President also noted that Mrs Gannon could have applied, and could still apply, to extend time for payment of the fee.