Schultz v Esso Petroleum Co Ltd

The question whether timely presentation was reasonably practicable requires a common-sense assessment of whether it was reasonably feasible in the circumstances. It is not answered simply because the claimant was physically capable of giving instructions during an earlier part of the limitation period. The tribunal must consider the whole period, the surrounding circumstances and the purpose of issuing proceedings. A claimant’s pursuit of an alternative remedy may be relevant. Disabling illness in the critical closing weeks may carry substantially greater weight than illness occurring earlier in the period.

The claimant was dismissed while absent from work with depression. He presented unfair-dismissal and contract claims after the ordinary three-month period had expired. The London South Industrial Tribunal held that it lacked jurisdiction because he had been well enough to instruct solicitors during the first seven to eight weeks after dismissal, although it found that he was too ill to do so during the final six weeks.

The Employment Appeal Tribunal, by a majority, dismissed his appeal. The Court of Appeal considered whether the tribunal had correctly applied the reasonably-practicable extensions in section 111(2)(b) of the Employment Rights Act 1996 and article 7(c) of the Industrial Tribunals Extension of Jurisdiction Order 1994.

1. Appeal allowed unanimously. Potter LJ gave the substantive judgment, with which Brooke and Stuart-Smith LJJ agreed. The Industrial Tribunal had misdirected itself on reasonable practicability.

2. The tribunal appeared to have treated the claimant’s physical ability to give instructions during the first seven weeks as decisive. That approach was inconsistent with Palmer, [1984] 1 All ER 945. Reasonable practicability is not confined to physical capability. It requires an assessment of reasonable feasibility in the circumstances.

3. The statutory qualification of reasonableness required the tribunal to consider the surrounding circumstances and the object to be achieved. In this context, the claimant was pursuing an internal disciplinary appeal in the hope of avoiding litigation. The relevant aim was therefore to issue proceedings with time to spare before expiry of the limitation period, rather than to issue them at the earliest possible opportunity.

4. Although illness must be assessed against the whole three-month period, its timing matters. A disabling illness in the closing weeks before expiry may make all the difference to reasonable practicability. It need not be given the same weight as an equivalent period of illness early in the period. The tribunal had focused on the wrong part of the limitation period.

5. Potter LJ also rejected the respondent’s suggested inference that the solicitors’ failure to issue proceedings was an error binding the claimant. There was no evidence that the solicitors had authority to issue a fresh tribunal claim. A retainer to advise and pursue an internal appeal did not suffice.

6. The tribunal had found, in the alternative, that the claim was presented within a further reasonable period once the claimant was fit to act. On its primary findings, the Court of Appeal allowed the appeal. The order was: appeal allowed with costs.

• Court of Appeal (Civil Division): Allowed the claimant’s appeal, [1999] EWCA Civ 1015.
• Employment Appeal Tribunal: By a majority, dismissed the claimant’s appeal from the Industrial Tribunal.
• London South Industrial Tribunal: On 23 July 1997, held that it lacked jurisdiction because the claims had not been presented within the statutory time limit and it was reasonably practicable to have done so.