UNFAIR DISMISSAL: WHEN WILL THE COURTS ALLOW EXTENDED TIME LIMITS?

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1 UNFAIR DISMISSAL: WHEN WILL THE COURTS ALLOW EXTENDED TIME LIMITS? This article appeared in Employment Law Journal February 2008 Number 87 In the light of a series of recent EAT cases, Marc Jones and Mandeep Kalsi consider the provisions for extending the normal time limit (ie three months less a day) for presenting a tribunal claim for unfair dismissal and the overlap between regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 ( 2004 Regulations ) and section 111 of the Employment Rights Act 1996 ( ERA 1996 ). Extending time The traditional method of extending the normal time limit for a complaint of unfair dismissal is found within s111(2) of the ERA 1996, which provides that a complaint can be heard out of time if it was submitted within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. Section 111 of the ERA 1996 provides: (1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer. (2) Subject to subsection (3), an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal (a) or before the end of the period of three months beginning with the effective date of termination, (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. There are two stages when applying s111(2): firstly; to determine whether it was reasonably practicable for the complaint to have been presented within three months and, secondly; if not, to determine whether the complaint was then presented within such further period as could be considered a reasonable period. According to the EAT in (1) Northumberland County Council (2) Governing Body of Choppington First School v D Thompson [2007] 1 s111(2)(b) should be given a liberal interpretation and that tribunals should foucs on the reasonableness aspect, rather than the practicable aspect, of that definition. That exercise entails consideration of not merely what the employee knew, but also what knowledge the employee should have had if he had acted reasonably in all the circumstances. Despite this guidance, the construction of s111(2) means that a rules is rules approach can often be adopted by the tribunal, illustrating that the test is not easily met. The resultant effect is that the strictness of the reasonable practicability test prevents the prosecution of many complaints of unfair dismissal where the degree of lateness has caused an employer no prejudice whatsoever. 1 UKEAT/0209/07/MAA

2 Another provision which allows for an extension of time for a claim of unfair dismissal is that contained within regulation 15(2) of the 2004 Regulations. This provides for an automatic three-month extension of time after the expiry of the normal three month time limit provided that the employee had reasonable grounds for believing when that time limit expired that a dismissal or disciplinary procedure (whether that be a statutory or an internal one) was being followed in respect of the employee s dismissal. Regulation 15 of the 2004 Regulations provides: (1) Where a complaint is presented to an employment tribunal under a jurisdiction listed in Schedule 3 or 4 and (a) either of the dismissal and disciplinary procedures is the applicable statutory procedure and the circumstances specified in paragraph (2) apply; or (b) either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) apply; the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired. (2) The circumstances referred to in paragraph (1)(a) are that the employee presents a complaint to the tribunal after the expiry of the normal time limit for presenting the complaint but had reasonable grounds for believing, when that time limit expired, that a dismissal or disciplinary procedure, whether statutory or otherwise (including an appropriate procedure for the purposes of regulation 5(2)), was being followed in respect of matters that consisted of or included the substance of the tribunal complaint. The meaning of reasonably practicable Previous authorities concerning time limits for presenting unfair dismissal claims have underscored an established principle that time limits must be strictly enforced. Failure to present a claim in time could not be rectified by a claimant having received incorrect advice from a professional adviser; this was simply not a valid excuse for failing to present a claim in time. In relation to the interplay between time-limits and erroneous legal advice, the Court of Appeal in Palmer v Southend on Sea Borough Council [1984] 2, laid down a number of factors in defining the reasonably practicable test: when did the employee know that he was able to make a claim? was there any misrepresentation by the employer as to the dismissal or timing? was the employee being advised at any material time? If so, by whom? What was the extent of the adviser s knowledge of the facts? was there any substantial fault on the part of the employee or his adviser, leading to his failure to comply with the time limit? A departure from established authority was first reached by the Court of Appeal in Marks & Spencer Plc v Williams-Ryan [2005] 3, which upheld the decision to allow the claimant to present her unfair dismissal claim one month out-of-time, even though a letter from her employer had advised her of her right to make a complaint to a tribunal and that she had sought advice from the Citizens Advice Bureau (CAB). Lord Phillips MR explained at paragraph 21 that: it has repeatedly been held that, when deciding whether it was reasonably practicable for an employee to make a complaint to an employment tribunal, regard should be had to what, if anything, the employee knew about the right to complain to the employment tribunal and of the time limit for making such a complaint. Ignorance of either does not necessarily render it not reasonably practicable to bring a complaint in time. It is necessary to consider not merely what the employee knew, but what knowledge the employee should have had had he or she acted reasonably in all the circumstances. 2 1 All ER EWCA Civ 470

3 The Court of Appeal went on to say that while the decision was generous, it was not outside the range of conclusions that could be reached particularly where, as in this case, the advice given to the claimant was misleading and insufficient. This relaxed attitude to time limits for presenting a complaint of unfair dismissal was not, however, applied in the case of Royal Bank of Scotland v Theobald [2007] 4, where the EAT held that where a claimant, acting in reliance on the (erroneous) advice of a skilled adviser, (but where the claimant ultimately retained the responsibility of presenting the claim) missed the time limit for presenting an unfair dismissal claim, it could be argued that it had not been reasonably practicable to present the claim in time. However, the position would be different if a claimant instructed an adviser to present the claim: an adviser s negligent failure to do so in time would give rise to a negligence claim against the adviser, but the claimant could not avail himself of the reasonably practicable escape clause. Whether someone is a skilled adviser depends on the particular facts and circumstances of the case. In this case, present the claim two weeks after the expiry of the time limit was a quite significant delay. Where a claimant asks the tribunal to accept a late claim on the basis that it has in fact been presented within a reasonable time after the expiry of the time limit, it is incumbent on the claimant to provide both a complete and frank reason as to how and why the delay had occurred. On the facts, the EAT concluded that the claimant could have sent his claim electronically within time. In Beasley v National Grid Electricity Transmissions [2007] 5 another case dealing with electronically presented claims the claimant attempted to send his unfair dismissal claim by at 11:44pm on the last day of the normal time limit but mistyped the address. The was returned undelivered one minute later. He then sent a test at 11:57 pm before sending the claim form at midnight. His claim was received by Tribunal Service 88 seconds late. The tribunal was of the view that the claimant was well aware of the time limit and that there had been no impediment preventing him from presenting his claim in time and therefore, rejected his claim. The EAT had regard to the decision in Williams-Ryan and agreed with the tribunal and although they sympathised with the claimant and noted that the delay was a mere 88 seconds and no prejudice was caused to the respondent, these factors were ultimately immaterial because of the reasonable practicability of timeous presentation. On first reading, this case may seem harsh. However, it demonstrates all too clearly the importance of noting deadlines and making sufficient allowance for mishaps in compliance with those deadlines. Further, in defending cases, it is worth checking the date of submission of a claim carefully a small error may have major consequences. The EAT did note that the law works, first, very harshly against those who are a few minutes late in presenting their claims and, second, extremely favourably in relation to respondent employers who are excused from defending their actions by virtue of a delay which has not prejudiced them in any way. Nevertheless, s111 of the ERA 1996 is clear and the tribunal had taken into account all relevant matters relating to the issue of reasonable practicability. Reasonably practicable versus regulation 15 But what about the situation where an employee has been provided with the decision of an internal appeal shortly before the expiry of the time limit for presenting a complaint of unfair dismissal thus depriving the employee of the automatic three-month extension of time to present a tribunal claim? The EAT has recently considered the application of regulation 15(2) of the 2004 Regulations and examined the requirements on a tribunal to consider all pertinent matters relevant to the reasonably practicable test for extending time. In Wolverhampton University v Elbeltagi [2007], the EAT was asked to consider whether a claim that was presented two days outside the normal time limit should be rejected. The claimant was sent notification of the outcome of his appeal three days before the expiry of the normal limitation period. Consequently, regulations 15(1) and (2) were not triggered. The tribunal concluded that in the circumstances it was not reasonably practicable for the claimant to present his claim in time, and that 4 UKEAT/0444/06 5 UKEAT/0626/06

4 his claim was subsequently presented within a further reasonable period, being only two days late. Consequently, the tribunal allowed the claim to proceed. The respondent appealed on the basis that the claimant had not explained why he had failed to present his claim after he became aware three days before the expiry of the normal time limit. The EAT agreed with the respondent and remitted the case back to the same tribunal to consider the feasibility of the claimant presenting his claim within those three days. At this juncture, employers were being advised that by providing an employee with the decision rejecting an internal appeal against dismissal could be provided on the last day of the normal time limit for presenting a complaint of unfair dismissal and that it would still be reasonably practicable to present the claim in time. This was precisely what the EAT considered in Ashcroft v Haberdashers Aske s School [2007]. 6 In this case, the claimant received the decision rejecting his appeal against dismissal at 6:00pm on the last day of the normal time for presentig his claim. Therefore, regulation 15 (2) did not apply. The claimant s claim for unfair dismissal was presented to the tribunal one month and four days out of time. The reasons provided by the claimant for presenting the claim late were that there was an ongoing appeal and that he had received erroneous legal advice. The tribunal rejected his claim and concluded that it was reasonably practicable to have presented the claim in time but without considering the two-stage test in s111(2). On appeal to the EAT, as in Theobald, there was an issue regarding the status of the adviser. It was argued on behalf of the claimant that Theobald was distinguishable on the basis that whilst the adviser had a law degree and had represented himself as being a solicitor, he was not in fact a solicitor, there was no retainer in place for his services and he was not remunerated. Accordingly, the claimant submitted that he was not a skilled adviser when it came to that adviser presenting his claim. Although the EAT took into account the two distinctions set out in Theobald over advice received from an adviser (see above), it noted that, whilst a difficult distinction to make in practice, the claimant in the instant case could not avail himself of the argument that the status of the adviser would have altered the tribunal s outcome. The EAT acknowledged that although Theobald and Elbeltagi considered the issue of the reasonable practicability test and the interplay with advice received from a skilled adviser, it did not address the issue of whether or not it was reasonably practicable for the claimant to commence proceedings in relation to the period between the finding out of the outcome of the appeal and the expiry of the normal time-limit. In the instant case, the claimant had six hours to make a claim. Further, the EAT was persuaded that the 2004 Regulations created a new scenario such as to overtake the established position in Palmer, noting that if the latter case was to be binding, then there was no point in having regulation 15(2). Allowing the appeal, the EAT determined that it was not reasonably practicable for the claimant to have brought his claim in the final six hours and remitted the matter to a new tribunal to decide whether the presentation of the claim was within a further reasonable period (ie the second part of the two stage test). In Bevan v Royal Bank of Scotland [2007] 7 a differentally constituted EAT considered the intersection between case law on the question of when it is reasonably practicable to present claims out of time and the extension of time to begin proceedings under regulations 15(1) and (2) of the 2004 Regulations. As in Ashcroft, the question which arose was what happens if the statutory dismissal and disciplinary procedures were being followed and ended on the last day of the normal time limit bearing in mind that there is no provision prohibiting an employee from commencing proceedings at any time during the three-month period whether it was open to a tribunal to say that it was not reasonably practicable to present a claim within time. 6 UKEAT/0151/07 7 UKEAT/0440/07

5 In this case, the claimant received the decision rejecting his appeal against dismissal when he returned home from work at 7:00pm on the last day of the normal time limit. Until the moment the claimant was in receipt of the letter dismissing his appeal, he reasonably believed that the statutory procedure was still being followed. Only at 7.00pm did that belief cease just five hours short of the expiry of the three-month time limit for presenting his claim for unfair dismissal. The claimant notified his solicitors the following day who presented his claim seven days out of time. The tribunal referring to observations made in Theobald and determined that the last minute notification that the claimant s appeal was dismissed could properly be dealt with by the provisions of s111(2)(b) and in the circumstances it had not been reasonably practicable to present the claim in time (ie only five hours). On appeal to the EAT, the respondent argued that there was a line of cases which were authority for the fact that an ongoing internal appeal does not mean that it is not reasonably practicable to present a tribunal claim within the normal time limit. Rejecting the appeal, the EAT held that the test of what was reasonably practicable should be given a liberal construction in favour of the employee. It stated (somewhat controversially) that although generally speaking, the existence of an internal appeal is of no relevance to the question whether it is 'reasonably practicable' to present a claim within three months, this is not an absolute rule of law. In the instant case, the tribunal was entitled to extend time. The claimant reasonably believed that the appeal procedure was ongoing until shortly before the expiry of the normal time limit and therefore, it was perfectly logical for the claimant to let the procedure run its course before starting tribunal proceedings. The EAT affirmed the tribunal s observations that regulation 15 was to encourage parties not to start proceedings before an employment tribunal until internal procedures have been completed. Commentary The current position now appears to be: if an internal appeal process is being followed and ends very shortly before the expiry of the normal time limit for presenting a claim for unfair dismissal and such a claim is presented out of time a tribunal is likely to determine that it was not reasonably practicable to have presented the claim in time; if a claimant seeks to rely on the advice received for presenting a claim out of time then it will come down to whether that adviser was a skilled adviser according to the EAT in Theobald, there is no rule of law that the CAB should always be regarded as being a skilled adviser, comparable to a solicitor. Crucially, the EAT stated that a distinction should be drawn between: (i) cases where a claimant does not instruct an adviser to present his case for him, but simply seeks advice in a case where he retains responsibility for the presentation of his claim himself; and (ii) those where the adviser has been charged with the responsibility of presenting the claim. In the former case, it was stated that none of the existing authorities would seem to indicate that the claimant must necessarily be fixed with the fault of the adviser so as to make the escape clause [s111(2) of the ERA 1996] unavailable to him. In other words, the claimant can in such circumstances say that it was not reasonably practicable for him to present his claim during any period that he was acting on that error. In the latter case, if the facts of a case are that a claimant had put the handling of his tribunal claim in the hands of a skilled adviser and that adviser negligently failed to meet the time limit, then the settled view is that the claimant will not normally be able to argue that it was reasonable for such an adviser to delay beyond a statutory time limit. Consequently, the employee cannot rely upon that fact to excuse a failure to present a complaint to the tribunal in due time. although cases such as Bevan, Ashcroft and Theobald go some way to providing guidance on the tribunals approach to the reasonable practicability test the EAT in Beasley emphasised a fundamental point: the question of whether or not it is reasonably practicable for a claim to be presented in time is pre-eminently an issue of fact for the tribunal;

6 However, as underscored by the EAT in Bevan, nothing in the 2002 Act or the DRR [2004 Regulations] suggests any statutory intention that an employee should delay in commencing proceedings beyond the time limit as extended by regulation 15. An employee must therefore ensure that he presents his complaint within the three month extended period because a failure to do so will render his complaint time-barred. Marc Jones, Partner and Mandeep Kalsi, Paralegal, Employment Department, Turbervilles For further information, please contact: Marc Jones Partner, Employment Department TURBERVILLES direct dial direct fax The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken. Back to the top

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