Jurisdictional Points : Extension of Time: Reasonably Practicable
JURISDICTIONAL POINTS – Extension of time: just and equitable
The Claimant had lodged various claims of unfair dismissal and sex (pregnancy related) discrimination, all outwith the relevant three month time limits.
During the statutory three month period the Claimant had instructed solicitors and instructed them to raise proceedings should there be no response from the Respondent to a seven day letter. The Employment Tribunal found that the Claimant was without funds to have those proceedings initiated around the time of the expiry of the time limit. However, standing that she had been in receipt of legal representation and the finding that she had not been advised in relation to fee remission, the Tribunal had erred in failing to address the issue of the adequacy of the legal advice she had received. The failure to grapple with the question of whether the solicitors had been at fault was directly analogous to the situation that had arisen in eBay (UK) Ltd v Buzzeo UKEAT/0159/13. The Tribunal in this case had focused only on the Claimant’s pregnancy and the imminent birth of her son in considering the reasonable practicability test, when the role of the solicitors was an equally important factor. There was also confusion in the Judgment about the two separate periods – that prior to the expiry of the three month period and thereafter – in the analysis of the evidence.
In approaching the second limb of the test in section 111 Employment Rights Act 1996, the Tribunal had regarded the requirement to state the early conciliation number on a claim form as ‘technical’ when the authorities made clear that it was an essential requirement.
So far as the approach to the just and equitable test in section 123 Equality Act 2010, the approach of the Tribunal was flawed for similar reasons to those found in the application of the reasonable practicability test.
The appeal was allowed.
Lady Wise
[2016] UKEAT 0128 – 16 – 0809
Bailii
England and Wales
Employment
Updated: 25 January 2022; Ref: scu.570979