Chambers & 8 Ors v QCR Motors Ltd & Anor

For limitation purposes, the relevant date is the date fixed by the applicable statutory provision: the effective date of termination for unfair dismissal and the date of the relevant transfer for TUPE complaints. A claimant who relies on ignorance or mistaken belief must show that it was reasonable. Reasonableness includes what the claimant and professional advisers could have discovered by proper inquiry. A claimant cannot generally avoid the consequences of an adviser’s failure to act where the adviser was properly instructed. An Employment Tribunal’s factual assessment will not be disturbed for perversity unless an overwhelming case is established. Reasons need not address every point raised.

Nine employees appealed against a Birmingham Employment Tribunal decision holding that their claims against QCR Motors Ltd and Adac Paintbox Ltd were out of time. A preliminary tribunal had found that a service provision change under TUPE 2006 occurred on 7 August 2007. The claims were presented on 10 December 2007.

The Employment Tribunal held that the relevant limitation period began on 7 August 2007 for the TUPE consultation claim and that the claimants could reasonably have discovered the transfer by then. It also held that the claims were out of time on the alternative date of 28 August 2007. The appeal challenged the Tribunal’s findings, reasons and conclusion on reasonable practicability.

1. The appeal was dismissed. The Employment Tribunal had not erred in law, failed to make adequate findings, given inadequate reasons or reached a perverse conclusion.
2. For the claim against QCR concerning failure to consult, the limitation period under Regulations 12 and 15 of TUPE 2006 ran from the date of the relevant transfer. For the individual claims against Paintbox, the period ran from the effective date of termination under section 111(2) of the Employment Rights Act 1996.
3. The correct approach to reasonable practicability was that ignorance or mistaken belief could constitute an impediment only if reasonable. That required consideration of what proper inquiry by the claimants, their union and their solicitors would have revealed. The claimants were fixed with the reasonableness of their solicitors’ conduct. Further inquiry would have revealed that the transfer had occurred by 7 August 2007.
4. The claimants knew by 28 August 2007 that a transfer had occurred. From 13 September 2007 there was no practical impediment to presenting claims before the expiry of the relevant period. The Employment Tribunal was therefore entitled to conclude that presentation by 6 November 2007 was reasonably practicable.
5. Following the finding of a relevant transfer, the contracts transferred automatically to Paintbox under Regulation 4(1) of TUPE 2006. Paintbox then dismissed the employees in connection with the transfer. Their subsequent continued work for QCR was treated as employment under new contracts, ending on 12 September 2007.
6. The alternative conclusion that the claims were out of time even by reference to 28 August 2007 did not need to be determined. Costs were refused.

• Employment Appeal Tribunal: dismissed the appeal from the Birmingham Employment Tribunal’s decision that the claims were out of time.