Marks & Spencer Plc v Williams-Ryan

Under section 111(2) of the Employment Rights Act 1996, reasonable practicability is a fact-sensitive question which should be construed liberally in favour of the employee. The tribunal must consider both what the employee knew and what they reasonably ought to have known about the right to complain and the applicable time limit.

Knowledge of a right to complain does not, as a rule of law, prevent reasonable ignorance of the time limit. Negligence by a retained skilled adviser is attributed to the employee, but advice from a Citizens Advice Bureau does not automatically have that effect. Incomplete or misleading employer material about an internal appeal may support a finding that late presentation was not reasonably practicable.

The respondent was summarily dismissed and presented an unfair-dismissal complaint nearly four months later. The employment tribunal extended time under section 111(2)(b) of the Employment Rights Act 1996. It found that she had pursued the employer’s internal appeal, had not been told of the tribunal time limit, and had reasonably believed that she should await the appeal outcome.

The Employment Appeal Tribunal dismissed the employer’s appeal. Before the Court of Appeal, the employer contended that the tribunal had relied on irrelevant delay in the internal procedure, that the respondent had been put on inquiry once she knew of the tribunal right, and that advice from the Citizens Advice Bureau was attributable to her. The central issue was whether the tribunal had erred in law in finding that timely presentation had not been reasonably practicable.

1. Appeal dismissed unanimously. Lord Phillips MR, with whom Latham and Keene LJJ agreed, held that the employment tribunal had not erred in law and that its conclusions were not perverse.

2. Section 111(2) of the Employment Rights Act 1996 is to be construed liberally in favour of the employee. Whether timely presentation was reasonably practicable is pre-eminently a question of fact. The tribunal must consider what the employee actually knew, and what they would reasonably have known had they acted reasonably in all the circumstances. Reasonable ignorance of the right, procedure or time limit may constitute an impediment.

3. Knowledge of a right to complain to a tribunal did not, as a matter of law, make continuing ignorance of the time limit unreasonable. It may make that conclusion harder to establish, but the issue remains factual. The rule in Dedman v British Building & Engineering Appliances Ltd [1974] ICR 53, attributing a retained solicitor’s negligent failure to meet a time limit to the employee, did not establish that an employee could never rely on misleading or inadequate advice from a Citizens Advice Bureau.

4. The EAT had overstated the facts by suggesting that the Bureau advised the respondent to await the internal appeal. It had not done so. The tribunal’s conclusion was nevertheless open to it because the employer’s material mentioned a tribunal claim without mentioning its time limit and could suggest that tribunal proceedings followed the internal appeal. The respondent’s course pressures were also relevant to whether her continued ignorance was reasonable.

5. The employer’s delay in completing the internal appeal was not itself the basis for the extension. It formed part of the factual context in which the tribunal assessed the respondent’s belief and knowledge. No basis existed for appellate intervention on a point of law.

• Court of Appeal (Civil Division): dismissed the employer’s appeal: [2005] EWCA Civ 470.

• Employment Appeal Tribunal: dismissed the employer’s appeal from the employment tribunal on 13 September 2004.

• Employment Tribunal, Central London: on 17 December 2003, permitted the employee to present her unfair-dismissal complaint outside the three-month period.