Benjamin-Cole v Great Ormond Street Hospital for Sick Children NHS Trust

When deciding whether to extend time for an employment claim, the tribunal must apply the statutory test and consider all the circumstances. It need not mechanically follow checklists drawn from the Civil Procedure Rules 1998 or limitation legislation.

A claimant who has entrusted proceedings to an adviser held out as competent is not ordinarily responsible for the adviser’s neglect, misunderstanding or delay. The availability of a claim against the adviser may be relevant, but cannot alone justify refusing an extension. The tribunal must distinguish the claimant’s conduct from the adviser’s defaults, and assess matters such as prejudice and the length of delay. Where the tribunal materially misattributes the adviser’s fault to the claimant, its decision cannot stand.

The claimant appealed against the decision of the Employment Tribunal, London (Central), dated 8 April 2009, which held that it had no jurisdiction to hear complaints of unfair dismissal and race victimisation. The victimisation claim was lodged approximately four hours after expiry of the relevant time limit.

The delay arose principally from the conduct of the claimant’s unqualified employment adviser, who had advised and represented her. The Employment Tribunal refused an extension under section 111 of the Employment Rights Act 1996 and section 68(6) of the Race Relations Act 1976. The central issue was whether the tribunal had properly exercised its discretion, particularly in attributing responsibility for the delay to the claimant.

1. Appeal allowed. The Employment Tribunal had materially erred in attributing the adviser’s defaults to the claimant and its decision could not stand.
2. Section 111(2) of the Employment Rights Act 1996 requires consideration of whether presentation in time was reasonably practicable. Section 68(6) of the Race Relations Act 1976 gives a wider discretion to extend time where, in all the circumstances, it is just and equitable. The Employment Tribunal applied the correct statutory tests, although it would have been preferable for it to identify more clearly which matters applied to each test.
3. The Employment Appeal Tribunal endorsed the guidance in Governing Body of St Albans School and Hertfordshire County Council v Neary [2009] EWCA Civ 1190: tribunals may find checklists helpful, but are not required to work mechanically through CPR 3.9 or limitation-law checklists.
4. Ordinarily, where a lay claimant places proceedings in the hands of an adviser held out as competent, the claimant is not responsible for the adviser’s neglect, misunderstanding or misapprehension of the law. The availability of a remedy against the adviser may be a relevant circumstance, but refusal of an extension cannot rest merely on that availability. The claimant’s own conduct must be considered separately.
5. The Employment Tribunal’s findings concerning the claimant’s alleged complacency, ability to issue proceedings herself and familiarity with the process were unsupported or unfairly derived from the adviser’s conduct. The tribunal also failed to give proper weight to the very short delay and the consequences of depriving the claimant of her claims.
6. The matter was fact-sensitive and the Employment Appeal Tribunal was not satisfied that only one answer was possible. It was remitted for a fresh hearing before a different Employment Judge.

• Employment Appeal Tribunal: appeal allowed against the Employment Tribunal’s decision dated 8 April 2009, with written Reasons dated 16 April 2009. The matter was remitted for reconsideration by a different Employment Judge.
• Employment Tribunal, London (Central): held that it had no jurisdiction to consider the claimant’s unfair dismissal and victimisation complaints because they were presented out of time.