Northamptonshire County Council v. Entwhistle

Under section 111(2)(b) of the Employment Rights Act 1996, the question whether it was reasonably practicable to present an unfair-dismissal complaint within time is generally factual and requires attention to the particular circumstances.

Where a claimant has instructed skilled advisers, reasonable practicability is assessed by reference to the advice the advisers should reasonably have given. Negligent failure to correct an employer’s erroneous statement of the time limit ordinarily means that the claim could reasonably have been presented in time. The employer’s original mistake does not itself make presentation impracticable where competent advice would have neutralised its effect.

The claimant was dismissed for gross misconduct. Following an internal appeal, the employer wrongly stated that he had three months from notification of the appeal outcome to bring an employment tribunal claim. In fact, the applicable extended time limit expired earlier.

The claimant’s solicitor failed to identify the error. The claim was presented just over two weeks late. The Regional Employment Judge held that it had not been reasonably practicable to present the claim in time and permitted it to proceed. The Council appealed, contending that the solicitor’s negligence engaged the principle in Dedman and defeated the extension application.

1. Appeal allowed. The claim was dismissed as out of time.
2. Section 111(2)(b) of the Employment Rights Act 1996 must be construed liberally in favour of employees, but the relevant question remains whether it was reasonably practicable to present the complaint within the applicable time limit.
3. The authorities establish that reasonable ignorance of the time limit may make presentation impracticable. However, where a claimant has consulted skilled advisers, the question is what could have been done if the advisers had given the advice which they should reasonably have given in all the circumstances.
4. The endorsement of the Dedman principle in Williams-Ryan does not create an absolute rule. Circumstances may exist in which an adviser’s failure to give correct advice is itself reasonable, for example where both claimant and adviser are misled by the employer about a material factual matter.
5. That qualification did not assist this claimant. His solicitor should have checked the employer’s statement and was negligent in failing to do so. It followed that the claimant could have presented the claim in time had proper advice been given.
6. The issue was not one of causation. Although the employer’s error contributed to the missed deadline, it would have had no effect if the solicitor had given the advice reasonably required. The approach in Sen, concerning erroneous advice from employment tribunal staff, was distinguishable.

• Regional Employment Tribunal, Northampton: held that it had not been reasonably practicable to present the claim within the primary extended period and that it had been presented within a reasonable further period.
• Employment Appeal Tribunal: allowed the Council’s appeal and dismissed the claim as out of time.