Waiting for an internal appeal: when the tribunal clock runs out

A costly wait for an internal appeal

This case shows how easily a well-intentioned decision to exhaust internal processes can derail an unfair dismissal claim. The claimant, a Contact Officer with six years' service, was dismissed on 9 August 2021. He believed his dismissal was unfair and told his line manager he intended to appeal. The manager suggested he appeal first to avoid a negative perception. So he did – and waited.

He did not contact ACAS or the Employment Tribunal until 1 March 2022, the day his appeal was rejected. That was the first time he learned of the three-month time limit. By then, over seven months had passed since his dismissal. His unfair dismissal claim was presented on 13 March 2022, well outside the statutory period.

What the tribunal decided

The tribunal had to apply the strict test under section 111 of the Employment Rights Act 1996: was it 'not reasonably practicable' for the claim to be presented within three months? The claimant argued that he did not know about the time limit and was waiting for the appeal outcome. But the tribunal noted that he had been told at dismissal that he could contact ACAS or a tribunal. He was also a union member and could have sought advice. The tribunal found that it was reasonably practicable to have presented the claim in time, even while the appeal was pending. The unfair dismissal claim was therefore dismissed.

However, the discrimination claims – for disability discrimination, failure to make reasonable adjustments, and harassment – were allowed to proceed. The Equality Act 2010 gives tribunals a wider discretion to extend time where it is 'just and equitable'. The tribunal considered the claimant's lack of knowledge, the respondent's conduct, and the fact that the claims were closely linked to the dismissal. It decided that the balance of prejudice favoured allowing the discrimination claims to go forward.

What this means for similar claims

This case is a stark reminder that the time limit for unfair dismissal is unforgiving. Waiting for an internal appeal does not stop the clock. Employees who believe they have been unfairly dismissed should seek advice immediately and, at the very least, lodge a protective claim to preserve their rights. Discrimination claims, by contrast, offer more flexibility – but even they should be brought as soon as possible. The safest approach is to act promptly on all potential claims, rather than relying on internal processes to resolve the matter first.