London Underground Ltd.v Noel (unreported) Employment Appeal Tribunal 13 May 1998

The three month time limit for presenting a claim of unfair dismissal is strictly applied in employment tribunals. There is however an escape clause in that the Employment Tribunal has a discretion to extend the time for presentation of the claim "within such further period as [it] considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of 3 months." (The Employment Rights Act 1996 Section 111(2)(b)).

There are two hurdles for the employee to get over. First, she must show that it was not reasonably practicable to present her claim in time. The burden of proof in this is firmly on the applicant. Second, if she succeeds in showing that it was not reasonably practicable to present her claim in time, the tribunal must be satisfied that the time within which the claim was in fact presented was reasonable.

The question of what is or is not reasonably practicable is essentially one of fact for the tribunal to decide. The appeal courts have been slow to interfere with the tribunal's decision.

The Employment Appeal Tribunal in London Underground Limited v Noel were asked to consider whether an tribunal with a chairman sitting alone was entitled to find that it was not reasonably practicable for Ms. Noel to present her claim within the three month time limit.

The EAT upheld the decision of the tribunal and followed the previous case law that the expression "reasonably practicable" had to be looked at in a common-sense way. They were happy to leave the decision to a tribunal as the most appropriate forum for such questions.

There were special circumstances in Ms. Noel's case which provide a warning about the importance of protecting an employee's rights in an Employment Tribunal by lodging a claim in time.

Ms. Noel had been employed by London Underground for seven years. She was dismissed following a row with a member of the public. She unsuccessfully appealed against her dismissal but at a final appeal on 23rd June 1997 she was successful.

She was offered re-employment at a lower grade starting from 7th July 1997. The three month time limit for the presentation of her complaint expired on 9 July 1997 as she had been dismissed on 10 April 1997. She was unable to start work on 7 July and subsequently failed a medical examination at which point the offer of re-employment was withdrawn. She presented her complaint of unfair dismissal on 7 August 1997. A chairman sitting alone held that the tribunal had jurisdiction to hear her complaint.

From the decision of the EAT it would appear that Ms Noel was aware of her right to present a complaint to a tribunal because of the assistance she was receiving from her Trade Union. She intended to exercise that right until the time the final appeal was resolved.

Ms Noel decided not to go ahead with her application because of her successful appeal. Although the EAT came down in favour of the tribunal chairman's decision and Ms. Noel, the more stress free way of protecting her position would have been to lodge an IT1 by the deadline.

If the offer of re-employment had worked out her claim could have been withdrawn. If not, her position would have been protected.