Miss K Samuel v Salford Royal NHS Foundation Trust — 2021

At a public preliminary hearing on 8 April 2021, Employment Judge Buchanan considered whether Miss Samuel's unfair dismissal and wrongful dismissal claims, presented on 21 August 2020, were in time. The accepted effective date of termination was 21 May 2020, so the ordinary limitation period expired on 20 August 2020 unless it was extended by the early conciliation provisions. The claimant said she had relied on her union to file the ET1, and the respondent argued the claim was one day late.

The tribunal held that the early conciliation certificate relied on with the ET1 covered 11 May 2020 to 15 May 2020 and related to the same matter that later led to the dismissal. Applying section 207B(3) of the Employment Rights Act 1996 and article 8B(3) of the 1994 Order, the judge added the four days between day after day A and day B to the limitation period, extending the deadline to 24 August 2020. On that basis, the claim form filed on 21 August 2020 was in time and the tribunal had jurisdiction to hear both claims.

The judge reviewed HMRC v Serra Garau and preferred the ordinary meaning of the statutory wording, noting that the legislation did not confine the excluded period to days falling within the primary limitation period. In the alternative, if that conclusion were wrong, the judge said the claimant had not shown that it was not reasonably practicable to present the claim in time, because the late filing resulted from her advisers' error and that fault was attributable to the claimant. The judge also said that, had it been necessary to decide the point, the one-day delay would have been within a reasonable further period.