Francis v London Underground Ltd

An employment claim presented outside the statutory three-month limit may proceed only if it was not reasonably practicable to present it in time. Personal difficulties may sometimes justify a short extension, but they do not automatically justify a delay of several years. The claimant’s knowledge of employment tribunal procedures, including previous use of extensions of time, is relevant. Evidence of a continuing discriminatory act during employment does not by itself extend time for a claim presented years after the employment ended.

Ronald Francis sought permission to appeal against the Employment Appeal Tribunal’s dismissal of his appeal from an Employment Tribunal decision. The Employment Tribunal had dismissed claims for unfair dismissal, constructive dismissal and racial discrimination against London Underground Ltd. It found that the application, issued on 12 May 2000, was substantially out of time under section 11(4) of the Employment Rights Act 1996, and that it duplicated earlier applications struck out in 1997.

The central issue was whether it had been reasonably practicable for Mr Francis to present his claims within three months, and whether his evidence of continuing discrimination or personal difficulties justified the required extension of approximately two and three-quarter years.

1. Application dismissed. The Court of Appeal, constituted by Lord Justice Keene, refused permission to appeal because there was no prospect of successfully challenging the Employment Appeal Tribunal’s decision.

2. Section 11(4) of the Employment Rights Act 1996 imposes an important three-month time restriction which goes to the jurisdiction of the Employment Tribunal. Under section 11(4)(b), an extension depends on whether it was not reasonably practicable to present the claim within the prescribed period.

3. The claimant’s previous applications, including his successful reliance on extensions of time, demonstrated that he understood the relevant tribunal procedure and time limits. His failure to appeal the 1997 striking-out decisions was also relevant. The asserted lack of knowledge of constructive dismissal, rent arrears, eviction difficulties and storage of papers did not make presentation of the 2000 application within three months impracticable.

4. Even assuming that the recorded conversation evidenced a continuing discriminatory act within the meaning considered in Sougrin v Haringey Health Authority [1992] IRLR 416, the conversation occurred during employment and the employment ended in May 1997. It could not justify extending time until May 2000.

5. The application was therefore dismissed.

• Court of Appeal (Civil Division): On 30 October 2001, Lord Justice Keene dismissed the application for permission to appeal.
• Employment Appeal Tribunal: On 25 July 2001, dismissed the appeal at a preliminary hearing, holding that there was no arguable case that it had not been reasonably practicable to present the claim within the three-month limit.
• Employment Tribunal, London Central: Dismissed the claims and found that the 2000 application duplicated earlier applications and was out of time.