EAT JURISDICTIONAL POINTS – Extension of time: reasonably practicable
The Employment Tribunal had correctly directed itself that the evidential burden of proving under section 111(2)(b) of the Employment Rights Act 1996, in cases where it is it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the three months, that it was reasonable not to have commenced proceedings before the date they were in fact commenced is on the employee. But where the employee adduces some evidence (even if it is untested hearsay evidence) to explain the further delay, such evidence ought not to be rejected unless it is contradicted by other evidence or is otherwise incredible. Here evidence that the employee had recovered very well from extensive surgery did not contradict his evidence that he was very weak in the weeks after the operation and, as there was nothing incredible about his account, the Employment Tribunal had misdirected itself as to what was required in order for it to be satisfied; the appeal was allowed and the Employment Appeal Tribunal substituted a finding that it had been reasonable for the employee not to commence proceedings until the date he did so.
Citations:
[2010] UKEAT 0517 – 10 – 2911
Links:
Employment
Updated: 06 September 2022; Ref: scu.432798
