The claimant sought to bring his claim under a provision which required a complaint to the industrial tribunal to be made within four weeks of the dismissal unless the employment tribunal was satisfied that this was not ‘practicable’. He did not meet the limit.
Held: Time limits in all statutory tribunals are jurisdictional in nature, though Lord Denning gave examples of time limits which did not go as to jurisdiction. Where there was an immediate dismissal with salary in lieu of notice, the effective date of termination was the date of the dismissal and not the expiry of the period in respect of which the salary in lieu was paid. Where a Claimant instructs solicitors and does so with full knowledge of the facts giving rise to his complaint and through their default the originating application is not presented in time the Tribunal will normally consider that it was reasonably practicable for the claim to have been presented within the time limit.
Lord Denning MR said: ‘Ignorance of his rights – or ignorance of the time limit – is not just cause or excuse, unless it appears that he or his advisers could not reasonably have been expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and they must take the consequences . . It is difficult to find a set of words in which to express the liberal interpretation which the English Court has given to the escape clause. The principal thing is to emphasise as the statute does `the circumstances’. What is practicable `in the circumstances’? If in the circumstances the man knew or was put on enquiry as to his rights and as to the time limit, then it was `practicable’ for him to have presented his complaint within the four weeks and he ought to have done so. But if he did not know and there was nothing to put him on enquiry then it was `not practicable’ and he should be excused . . the time limit is so strict that it goes to the jurisdiction of the tribunal to hear the complaint. By that I mean that, if the complaint is presented to the tribunal just one day late, the tribunal has no jurisdiction to consider it. Even if the employer is ready to waive it and says to the tribunal: ‘I do not want to take advantage of this man. I will not take any point that he is a day late’; nevertheless the tribunal cannot hear the case. It has no power to extend the time: see Westward Circuits Ltd v Read [1973] ICR 301 and Rogers v Bodfari (Transport) Ltd. [1973] ICR 325′
Scarman LJ said: ‘On the point of construction of ‘the escape clause’ I agree with Lord Denning MR. The word ‘practicable’ is an ordinary English word of great flexibility: it takes its meaning from its context. But, whenever used, it is a call for the exercise of common sense, a warning that sound judgment will be impossible without compromise. Sometimes the context contemplates a situation rarely to be achieved, though much to be desired: the word then indicates one must be satisfied with less than perfection: see, for example, its use in s 5 of the Matrimonial Proceedings and Property Act 1970. Sometimes, as is submitted in the present case, what the context requires may have been possible, but may not for some reason have been ‘practicable’. Whatever its context, the quality of the word is that there are circumstances in which we must be content with less than 100 per cent: and it calls for judgment to determine how much less.’
Judges:
Lord Denning MR, Scarman LJ
Citations:
[1973] IRLR 379, [1974] 1 All ER 520, [1974] ICR 53, [1974] 1 WLR 171
Jurisdiction:
England and Wales
Citing:
Approved – Rogers v Bodfari (Transport) NIRC 1973
Time limits in the context of unfair dismissal claims go to jurisdiction, and that jurisdiction cannot be conferred on a tribunal by agreement or waiver. However, There is nothing to prevent the time bar issue in relation to a particular act being . .
Cited by:
Cited – Sally Harper v Virgin Net Limited CA 10-Mar-2004
The employee had been dismissed. Her contractual notice period was longer than the statutory period.
Held: The statutory notice period prevailed in calculating the date of dismissal. The contractual period could not be used to extend the total . .
Cited – Alchemy Estates Ltd v Astor and Another ChD 5-Nov-2008
The parties disputed the effect of a contract between them for the sale of a leasehold property. After exchange the solicitors failed to obtain the landlord’s consent to the proposed assignment as required by the lease. In the meantime the proposed . .
Cited – Tuntum Housing Association v Aryeetey EAT 12-Oct-2007
EAT Time Limits – Reasonably practicability
Practice and Procedure – Bias, misconduct and procedural irregularity
Chairman’s mistake as to necessity for further claim following Claimant’s solicitors . .
Cited – Kirklees Metropolitan Council v Radecki CA 8-Apr-2009
The council appealed against a finding that the claimant’s case had been brought in time. There had been negotiations for a compromise agreement which had failed. The EAT had found it unclear that the employment had ended at the point asserted by . .
Applied – Robert Cort and Son Ltd v Charman EAT 1981
Where an employee is dismissed summarily, the effective date of termination of his employment for the purposes of employment law is the date of the summary dismissal. It makes no difference that the dismissal might have amounted to a repudiatory . .
Cited – The Royal Bank of Scotland Plc v Theobald EAT 10-Jan-2007
EAT Claim for unfair dismissal not presented timeously, within three months, but was presented thirteen days thereafter. During most of the three month period, the Claimant had an outstanding appeal process . .
Approved – Regina v Chief Constable of South Wales and Another Ex Parte Merrick QBD 17-Feb-1994
The court considered the failure of the respondent to comply with a statutory requirement to comply with a request from a detained person to consult a solicitor ‘as soon as practicable’.
Held: For the police to deny access to solicitors at . .
Cited – North Somerset District Council v Honda Motor Europe Ltd and Others QBD 2-Jul-2010
Delayed Rates Claims Service made them Defective
The council claimed that the defendants were liable for business rates. The defendants said that the notices were defective in not having been served ‘as soon as practicable’, and further that they should not be enforced since the delay had created . .
Cited – Regina v Immigration Appeal Tribunal Ex Parte S QBD 25-Feb-1998
Immigration Appeal Tribunal had duty to hear parties on a genuine appeal even though had failed to comply with earlier directions. . .
Cited – Marks and Spencer Plc v S Williams Ryan EAT 17-Aug-2004
EAT Time Limits – Reasonable practicability . .
Cited – E, Regina (on the Application of) v Bristol City Council Admn 13-Jan-2005
The patient did not wish her nearest relative, namely her sister, to be involved with her case and there was evidence that she would be so distressed by the sister being consulted that it could harm her health. The sister likewise did not wish to . .
Cited – London Borough of Waltham Forest, Regina (On the Application of) v Waltham Forest Magistrates’ Court and Yem Yom Ventures Limited Admn 4-Nov-2008
. .
Cited – Syed v Ford Motor Co 1979
The actions and failures of a trade union representative can be attributed to the claimant. . .
Cited – Myers v T and S Stores Plc EAT 1-Dec-1998
. .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 23 June 2022; Ref: scu.194624
