Late Claims and Late Arguments – an Important Lesson from Ndow v University Hospitals Birmingham NHS Foundation Trust

What was the case about?

In Ndow v University Hospitals Birmingham NHS Foundation Trust [2026] EAT 64, the Employment Appeal Tribunal reminded parties of one of the harshest realities of Employment Tribunal litigation – even a potentially strong argument will not assist a claimant if it was not properly raised before the Employment Tribunal in the first place.

In reality, the case was not primarily about whether the claimant had actually been unfairly dismissed or discriminated against. The central issue was limitation and the way the claims had been presented. The Tribunal considered two types of claims: unfair dismissal and disability discrimination. In both cases, the Tribunal concluded that the claims had been brought too late.

What happened in practice?

The claimant was employed by University Hospitals Birmingham NHS Foundation Trust as a healthcare assistant from 4 July 2009 until 8 June 2022. She was dismissed following an absence management procedure during which the employer concluded that she was no longer medically fit to continue in her role. On 22 June 2022, she submitted an internal appeal against her dismissal, and the appeal hearing eventually took place on 18 November 2022. One day later, on 19 November 2022, she was informed that the appeal had been unsuccessful. The claimant then presented Employment Tribunal claims on 10 and 12 January 2023, bringing claims for unfair dismissal and disability discrimination.

The difficulty was that, under Employment Tribunal rules, both unfair dismissal and discrimination claims generally must be brought within 3 months less one day from the relevant act complained of. In this case, the Tribunal concluded that the limitation deadline expired on 7 September 2022. The claimant only started ACAS Early Conciliation on 29 November 2022 and submitted her ET1 in January 2023 – more than four months after the primary limitation deadline had already passed.

For unfair dismissal claims, the Tribunal may only extend time where it was “not reasonably practicable” to bring the claim earlier. For discrimination claims, the Tribunal applies the broader “just and equitable” test. However, in this case, the Tribunal concluded that there was no proper basis to extend time under either test.

Why did the appeal fail?

In relation to unfair dismissal, the Tribunal concluded that it would have been reasonably practicable for the claimant to present her claim in time, meaning there was no basis to extend the limitation period. In relation to disability discrimination, the Tribunal decided that it would not be “just and equitable” to extend time. As a result, both claims failed entirely on procedural grounds before the Tribunal even considered the substantive merits of the allegations.

The claimant later appealed to the Employment Appeal Tribunal. She argued, among other things, that the delay had been caused by the internal appeal process. She also argued that the rejection of her appeal itself amounted to a further discriminatory act and therefore formed part of a “continuing act” of discrimination extending into November 2022.

The EAT rejected those arguments very quickly. The reason was simple: those points had never properly been raised before the Employment Tribunal. They were not clearly pleaded in the ET1, were not properly argued, and were not supported by the evidence presented at the preliminary hearing.

Why is this judgment so important?

This judgment is a very important warning for employees pursuing grievances or internal appeals with their employer. In practice, many employees mistakenly assume that limitation deadlines “pause” while an internal process is ongoing. That is not how Employment Tribunal limitation works. In most situations, time continues to run regardless of whether an internal grievance or appeal is still ongoing. Simply pursuing an appeal does not automatically extend the deadline for bringing Tribunal proceedings.

In practice, I regularly encounter situations where clients seek legal advice only after their claims are already out of time – sometimes by a year or more. Quite often, these cases may appear strong on the merits. Clients understandably try to persuade me that because they suffered obvious unfairness or discrimination, the Tribunal will surely still hear the case despite the delay. Unfortunately, Employment Tribunal litigation does not work that way.

Limitation is one of the most important procedural issues in employment law. Even a very strong claim can collapse at the very beginning simply because it was brought too late. From the perspective of firms operating on a no win no fee basis, this also creates a major practical problem, because the risk of a claim being dismissed as out of time will often automatically prevent representation being offered under a conditional fee arrangement.

Conclusion

The Ndow case highlights a brutal but very real aspect of Employment Tribunal litigation. Sometimes claimants do not lose because their case is weak on the facts. They lose because the arguments were not properly prepared, pleaded and advanced at the correct stage – or because they sought advice too late.

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