Constructive dismissal claim allowed to proceed despite being five days late

When a simple mistake can cost you your claim

This case shows how easy it is to fall foul of the strict time limits that apply to employment tribunal claims – and how the tribunal can show flexibility when the circumstances justify it.

The claimant resigned from her job at Farrell Heyworth Limited in October 2021 after problems with a colleague. She then went through the required early conciliation process with ACAS, which ended on 16 December 2021. That gave her until 22 January 2022 to present her unfair dismissal claim to the Employment Tribunal.

But the claimant, who had no laptop or tablet and only a mobile phone to access the internet, made a crucial error. She printed and completed the claim form at home, scanned it, and emailed it to ACAS on 18 January – believing that was the correct way to submit it. ACAS did not correct her until 21 January, when a conciliator told her she needed to send it to the tribunal. She posted it first-class that same day, but it was not date-stamped as received until 27 January – five days late.

What the tribunal considered

Employment Judge Dunlop accepted that the claimant had been distracted by the Christmas holidays and by her daughter's illness with Covid over the new year. She was also working full-time in a new job. Crucially, the judge noted that the claimant had only a mobile phone for internet access, which made it harder to navigate the online submission process.

The tribunal applied the legal test: was it 'reasonably practicable' for the claimant to present her claim in time? It concluded that it was not, given her limited technology and the mistaken belief – reinforced by ACAS's initial silence – that emailing the form to ACAS was sufficient. Once she realised her error, she posted the form the same day, which the tribunal considered a reasonable further period.

What this means for similar claims

The decision does not mean that late claims are always allowed. The tribunal was influenced by the very short delay (only five days), the claimant's prompt action once corrected, and her genuine difficulty accessing technology. Claimants who have access to a computer and internet but simply leave things to the last minute are unlikely to succeed.

For employers, the case is a reminder that tribunals will look sympathetically on claimants who face genuine barriers – especially if they are unrepresented and have limited digital access. Farrell Heyworth Limited will now have to defend the underlying constructive dismissal claim at a full hearing.