In Adedeji v University Hospitals Birmingham NHS Foundation Trust, the Court of Appeal upheld an employment judge’s refusal to grant extra time to a man whose constructive unfair dismissal and race discrimination claim was submitted three days late.
Most claims in the Employment Tribunal carry a time limit of 3 months which can only be extended by the period of ACAS conciliation. Mr Adedeji, a consultant surgeon, had resigned from Birmingham NHS Foundation Trust and then presented his claims, but after the deadline, despite twice being warned by his legal adviser of the significance of the deadline. Mr Adedeji said he’d believed he’d get more time under early conciliation rules, even though his possession of an EC certificate indicated otherwise.
An Employment Tribunal considered whether a mistaken belief by the Claimant about the extension of time limits constituted a ‘just and equitable’ reason to accept the late claim. An employment judge held his claims were out of time. This decision was upheld by the Employment Appeal Tribunal (EAT) and Mr Adedeji subsequently appealed to the Court of Appeal. The Court of Appeal upheld the original refusal by the Employment Tribunal on the basis that he was “a highly educated man with ready access to legal advice”, and he chose to ignore that advice, which weighed heavily against the grant of an extension.
Where a claim has been submitted out of time, the burden is on the Claimant to persuade the Employment Tribunal that it would be just and equitable to allow the claim to proceed. An Employment Tribunal should give consideration to all factors and a Claimant who has decided to ignore legal advice will find this task all the more difficult.