EAT Jurisdictional Points : Extension of Time: Reasonably Practicable – Extension of time – reasonably practicable – section 111(2)(b) Employment Rights Act 1996
The Claimant sought to pursue a complaint of automatic unfair dismissal under section 104 ERA 1996 (alleging the reason for her dismissal was her assertion of a statutory right, namely the right to a statement of employment particulars) but had lodged her claim outside the three-month time limit. The ET found the Claimant had not known of her entitlement to claim unfair dismissal when she did not have two years’ service and, although she promptly sought appropriate advice, had not been informed of this potential right but was told, by three separate sources (the CAB, ACAS and her local trade union adviser) she could not bring an unfair dismissal claim without two years’ service. In the circumstances, the ET concluded it had not been reasonably practicable for the Claimant to lodge her claim in time and she had lodged it within a reasonable period of time once she learned of her right. The Respondent appealed.
Held: Allowing the appeal and remitting the matter for rehearing by an ET
The circumstances of this case were unusual, not least as the Claimant had made efforts to obtain appropriate advice from three separate sources, each of which failed to give her the correct advice. In this context, the question for the ET was whether (per Underhill P in Northamptonshire County Council v Entwhistle [2010] IRLR 740 EAT) the failure of the advisers to give the correct advice was itself reasonable.
The ET apparently saw a distinction between a CAB adviser and a skilled legal adviser such as a solicitor, relying on Lord Phillips’ observation at paragraph 32 of Marks and Spencer plc v Williams-Ryan [2005] ICR 1293 CA. Whilst that was an entirely appropriate course, Lord Phillips had suggested that the relevance of the CAB advice might depend on ‘who it was that gave the advice and in what circumstances’. In the present case, the ET made no specific finding as to the status of the CAB advisor or as to the status of the advisers from ACAS or the Claimant’s trade union.
The ET considered the extent of the obligation upon the adviser to make further enquiries of the Claimant was relevant to the question whether the failure to give the correct advice was itself reasonable but that required that it make findings as to the particular circumstances in which the advice was sought and why it was reasonable for the advisers to provide only the limited advice given. Allowing that the advice given to the Claimant might have been reasonable on the particular circumstances of the case and – at the same time – that the information provided by the Claimant and specific questions raised by her might also have been reasonable, the ET could only arrive at a final conclusion on that question once it had made findings as to the actual instructions given and questions asked as to the status of the advisers and advice received. The ET’s reasoning failed to demonstrate that it had made the necessary findings; alternatively, failed to adequately explain the findings relevant to its conclusion.
Ultimately it was a matter for assessment as to whether this really was an exceptional case such as would satisfy the ET that it was not reasonably practicable for the claim to have been presented in time because of the particular factual matrix surrounding the advice sought by/given to the Claimant. More than one answer being possible, this matter would be remitted to the ET.
Eady QC HHJ
[2016] UKEAT 0111 – 16 – 1907
Bailii
England and Wales
Employment
Updated: 09 November 2021; Ref: scu.568589
