Jurisdictional Points – Claim In Time and Effective Date of Termination
JURISDICTIONAL POINTS – Extension of time: reasonably practicable
The Claimant had instructed her solicitors to lodge her ET claims of whistleblowing detriment and unfair dismissal but, to save costs, had agreed she would complete the formal parts of the form ET1 herself. In so doing, the Claimant failed to transcribe the ACAS Early Conciliation (‘EC’) certificate number correctly (missing off the last forward slash and final two digits) and her solicitors failed to spot this error before they submitted the claim on the last day of the relevant limitation period. The Claimant’s ET claim was duly rejected and the Claimant’s solicitors re-submitted the claim – this time with the correct EC number – within a day of receiving the ET’s notification of rejection. That, however, was outside the limitation period. Upon considering whether it had jurisdiction to determine the Claimant’s claims, the ET held that the claim was initially correctly rejected because it did not contain the right EC number and the re-submitted claim was out of time. Applying Adams v BT plc [2017] ICR 382, however, that did not necessarily mean it had been reasonably practicable for the re-submitted, corrected claim to have been presented in time. The Claimant and her solicitors had both believed that a properly constituted claim had been presented in time, albeit that belief was mistaken. The Claimant’s belief arose from her confidence in her solicitors; her solicitors’ belief arose because they had failed to spot the error in the EC certificate number. Although the solicitors were at fault, that did not necessarily mean their conduct was unreasonable. Seeing this case as akin to Adams v BT, the ET concluded that, on this point, it would have ‘little difficulty in resolving the issue of reasonable practicability in favour of the Claimant’. So doing, the ET concluded that the ET1 had been re-submitted within a reasonable period once the Claimant and her solicitors became aware of the error and that it therefore had jurisdiction to hear the claim. The Respondent appealed.
Held: allowing the appeal in part
The Claimant had believed she had lodged a properly constituted claim in time because she had confidence in her professional advisers. If those advisers had unreasonably failed to lodge a properly constituted claim in time, however, then the application of the Dedman principle (see Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379 CA) would mean that the Claimant would not be entitled to simply rely on her confidence in what they had done; she would be bound by their unreasonable conduct. The question then became whether the Claimant’s solicitors had acted reasonably. The ET found that they were ‘unquestionably at fault in failing to check the ET1 thoroughly’ but did not conclude that this automatically meant that their conduct was unreasonable. That was a permissible view given the facts of the case; in particular, the Claimant having undertaken to complete the ET1 form herself to save expense. That said, it could not be assumed that the case was on all fours with Adams, given that the question of the application of the Dedman principle had not been raised in that case. The ET had therefore needed to demonstrate that it had engaged with the question whether the Claimant’s solicitors had acted reasonably. As it was not possible to see that it had answered that question, the appeal would be allowed on this basis and this issue remitted to the same ET for determination.
Citations:
[2018] UKEAT 0066 – 18 – 0507
Links:
Jurisdiction:
England and Wales
Employment
Updated: 29 May 2022; Ref: scu.625448