Lezo v OCS Group UK Ltd

Under section 111(2) of the Employment Rights Act 1996, the further period allowed after expiry of the primary limitation period must itself be reasonable. The assessment is fact-sensitive and depends on the particular circumstances. In deciding that question, the tribunal may take account of the conduct and knowledge of the claimant’s advisers as well as those of the claimant. A tribunal’s use of language such as acting promptly or as soon as possible does not necessarily disclose an error of law where the statutory test has otherwise been correctly applied. An appellate tribunal should not interfere merely because another tribunal might have been more indulgent.

The claimant appealed against an Employment Judge’s refusal to extend time for presenting an unfair dismissal claim. The effective date of termination was found to be 26 January 2009, so the primary three-month period expired on 25 April 2009. The Employment Judge accepted that it had not been reasonably practicable to present the claim within that period, but held that the further delay until 6 May 2009 was unreasonable. The claimant argued that the Judge had applied an impermissibly demanding requirement to present the claim immediately or as soon as possible. The central issue was whether the Judge had correctly applied the second limb of section 111(2)(b).

1. Appeal dismissed. The Employment Judge had correctly decided that the period between 27 April and 6 May 2009 was not a reasonable further period under section 111(2)(b) of the Employment Rights Act 1996.
2. The first and second limbs of section 111(2)(b) involve distinct questions. The first concerns whether presentation within the primary period was reasonably practicable. The second concerns whether the further period allowed by the tribunal was reasonable. The second question is fact-sensitive and does not include the practicability element.
3. The approach to advisers applicable to the reasonable-practicability question also applies when assessing the further reasonable period. The tribunal is not confined to the claimant’s own conduct and knowledge. The claimant was blameless, but his advisers had the relevant papers by 27 April and provided no explanation for the subsequent delay.
4. The Judge’s references to presenting the claim as soon as possible did not amount to a misdirection. The statutory formulation, namely whether the delay was reasonable, was used repeatedly and the statutory provisions were cited. The additional wording reflected what a solicitor should do after discovering that the primary limitation period had expired.
5. The possible ambiguity in the dismissal letter did not justify interference. Even on the alternative construction of a 6 February 2009 termination date, the claim would have been late. The decision was not plainly wrong, although another tribunal might have taken a more indulgent view.

• Employment Appeal Tribunal: dismissed the claimant’s appeal from the Employment Judge’s decision on the extension of time issue.
• Employment Tribunal: accepted that it had not been reasonably practicable to present the claim within the primary limitation period, but refused to extend time to 6 May 2009 because the further delay was unreasonable.