Marks and Spencer plc v Williams-Ryan

The Court of Appeal dismissed Marks & Spencer's appeal against the Employment Tribunal's decision to extend time under section 111(2) of the Employment Rights Act 1996 for a complaint of unfair dismissal. The court reaffirmed that section 111(2) is to be construed liberally in favour of the employee and that the question whether it was "not reasonably practicable" to present a complaint within three months is essentially one of fact for the tribunal. The court accepted the tribunal's findings that the claimant had sought advice from the Citizens Advice Bureau, that the employer's communications about internal appeal procedures omitted any clear statement of the tribunal time limit and could be misleading, and that the claimant was under pressing pressure from study obligations. Those findings supported the tribunal's conclusion that it was not reasonably practicable for the claimant to present her complaint in time.

Background and procedural posture

The respondent, employed as a part-time sales assistant, was summarily dismissed for alleged gross misconduct on 17 April 2003. She sought to pursue an unfair dismissal claim but presented it after the statutory three-month limit. The Employment Tribunal (decision dated 17 December 2003) allowed an extension of time under section 111(2) ERA 1996. The employer's appeal to the Employment Appeal Tribunal was dismissed on 13 September 2004. Permission to appeal to the Court of Appeal was initially refused on paper but later granted; the Court of Appeal heard the appeal on 19 April 2005.

Nature of the application

• (i) The claimant sought an extension of the three-month time limit and permission to present an unfair dismissal complaint out of time under section 111(2) Employment Rights Act 1996.

Issues for the court

• (ii) The principal issues were whether the Employment Tribunal had been entitled to find that it was not reasonably practicable for the claimant to present her complaint within the three-month limit, whether reliance on advice from the Citizens Advice Bureau or the employer's internal procedures could excuse the delay, and whether the tribunal's findings were perverse such that this court could interfere on a point of law.

Court's reasoning and conclusions

• (iii) The Court of Appeal reviewed the relevant authorities and confirmed that the decision under section 111(2) is a fact‑sensitive one for the tribunal and that the statutory provision should be interpreted liberally for employees. The court explained the established principle that fault of a retained skilled adviser will normally be attributed to the employee (citing Dedman and related authorities), but that there is no rule of law precluding reliance on advice from a body such as the Citizens Advice Bureau; whether such advice excuses delay depends on the facts. The court held that the Employment Tribunal legitimately took account of a combination of factors: the limited CAB advice, the employer's partial and potentially misleading information about tribunal rights and time limits in its internal appeal literature, and the claimant's pressures completing her training course. Those findings supported the exercise of discretion to extend time. The Court concluded the tribunal's findings were not perverse and declined to overturn them.

The court also noted, by way of context, that later regulations (Employment Act 2002 (Dispute Resolution) Regulations 2004, regulation 15) altered the treatment of time taken in internal appeal procedures but that those regulations were not in force at the material time.

Appeal dismissed. The Court of Appeal held that the Employment Tribunal was entitled to find that it had not been reasonably practicable for the claimant to present her unfair dismissal complaint within the three-month limit under section 111(2) ERA 1996. The tribunal's factual findings — including the limited CAB advice, misleading aspects of the employer's internal appeal documentation, and the claimant's pressures — were within the range of permissible conclusions and not perverse. The court affirmed the established legal principles about attributing adviser fault but found they did not preclude relief on the facts of this case.

Employment Tribunal allowed extension of time and permitted the unfair dismissal complaint (decision dated 17 December 2003). Employer's appeal to the Employment Appeal Tribunal was dismissed on 13 September 2004. Permission to appeal to the Court of Appeal was initially refused on paper by Lord Justice Keene on 3 November 2004 but granted by Lloyd J on 10 December 2004. Court of Appeal judgment delivered 19 April 2005 ([2005] EWCA Civ 470).