Locke v Tabfine Ltd (t/a Hands Music Centre)

Under section 111(2)(b) of the Employment Rights Act 1996, an employee must establish both that it was not reasonably practicable to present the complaint within three months and that presentation within the later period was reasonable. The two questions must be kept distinct. The exception to the statutory time limit should not be approached by applying the general strictness of limitation periods or by treating the length of the extension as determinative. Evidence explaining the delay, including untested hearsay evidence, must be weighed rather than given no weight merely because the witness was unavailable for cross-examination. Evidence of a good medical recovery does not necessarily contradict evidence of continuing frailty and incapacity in daily life.

The appellant claimed unfair dismissal and breach of contract arising from his dismissal on 11 November 2008. He had cancer treatment, extensive surgery and further medical problems. He presented his ET1 on 25 July 2009.

The Employment Tribunal accepted that it had not been reasonably practicable to present the complaints within the initial three-month period. It nevertheless concluded that the appellant could have presented them during a short period between May and June 2009 and dismissed the claims as out of time. The appeal concerned the correct application of the two limbs of section 111(2)(b) and the treatment of the appellant’s evidence concerning his condition during the further period.

1. Appeal allowed. The Employment Tribunal had jurisdiction to determine the complaints.
2. Section 111(2)(b) of the Employment Rights Act 1996 contains two separate questions. First, whether it was not reasonably practicable to present the complaint within three months. Secondly, whether it was reasonable to present it within the further period. The Employment Tribunal had confused reasonable practicability with reasonableness when analysing the period between May and June.
3. The general strict approach to statutory time limits could not restrict the statutory exception. The length of the extension was not itself decisive. The question was whether it was reasonable to extend time for the period required on the evidence.
4. The Employment Tribunal was entitled to recognise that the burden of proof rested on the appellant. It nevertheless had to weigh his witness statement. The fact that it was hearsay and that he could not be cross-examined did not justify giving it no weight without explanation. The statement was not contradicted by the consultant’s description of a remarkable post-operative recovery, which concerned the medical context and did not address the appellant’s day-to-day ability to leave home, manage his stomas or undertake stressful proceedings.
5. On the material before it, the Employment Appeal Tribunal was in as good a position as the Employment Tribunal to decide the issue. The appellant’s account was not incredible and there was no evidence contradicting it. It was reasonable for him not to present his complaints until 25 July 2009. The decision was reversed and that conclusion substituted.

• Employment Appeal Tribunal: Allowed the appeal and substituted a finding that presentation on 25 July 2009 was reasonable.
• Employment Tribunal: Accepted that presentation within the initial three-month period was not reasonably practicable, but held that the later presentation was not reasonable and dismissed the complaints for want of jurisdiction.