Ms D Dhungana v Mr R Rai and 1 other — 2023

This hearing concerned the issue remitted by the Employment Appeal Tribunal: whether time should be extended under s164(2) Employment Rights Act 1996 for the Claimant's statutory redundancy payment claim. The tribunal recorded that the employment ended on 29 February 2020, the six-month time limit expired on 28 August 2020, ACAS was contacted on 2 September 2020, and the claim was presented on 15 September 2020.

The tribunal relied on earlier findings that the Claimant knew she needed her own ACAS certificate, had been told about the time limit at the Judge Tobin hearing on 17 August 2020, had access to other sources of advice, and had delayed for tactical reasons by including her complaints in Mr Basnet's claim form instead of bringing her own claim. It rejected the submission that she had been rebuffed by ACAS or lacked a practical route to act earlier.

The Respondents also argued statutory illegality, relying on s15 and s21 Immigration Asylum and Nationality Act 2006 and s24B Immigration Act 1971. Applying Okedina v Chikale [2019] IRLR 905, the tribunal found it highly likely that any underlying contract of employment would be unlawful and that the redundancy payment claim would therefore be unlikely to succeed, which weighed the prejudice in the Respondents' favour.

Balancing those matters, the tribunal concluded that it was not just and equitable to extend time under s164(2) ERA 1996. It therefore refused the extension and the statutory redundancy payment claim could not proceed. The tribunal noted that the reasons for allowing the earlier sex discrimination and marriage discrimination claims to proceed did not apply in the same way to this claim because the legal test and the illegality issue were different.