Carter v The Blackstone Group International Ltd

Where an unfair dismissal claim is presented outside the statutory time limit, the claimant must show that it was not reasonably practicable to present it in time. An appellate tribunal will not interfere with permissible factual findings supported by adequate reasons. Medical evidence may be rejected as incredible where the employment judge gives cogent reasons and the evidence does not establish an impediment to presenting the claim. Reliance on tribunal staff is not generally sufficient where the claimant knew the time limit, had access to professional advice and had taken steps towards preparing the claim.

The claimant appealed against an Employment Judge’s decision that her unfair dismissal claim, presented one day late, could reasonably have been presented within time. She had known the deadline, had received professional advice and had taken steps towards bringing the claim. She relied principally on medical incapacity and alleged incorrect information from tribunal staff.

The Employment Judge rejected both contentions. The claimant also raised an issue under regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, but that issue had been conceded below. The central question was whether the findings disclosed an error of law.

1. Appeal dismissed. The Employment Judge had directed himself correctly on Employment Rights Act 1996, section 111, and was entitled to conclude that the claim could have been presented within the three-month period.
2. The finding that the claimant’s medical evidence concerning the final three days was incredible was supported by cogent reasons. The evidence did not establish an impediment preventing presentation of the claim before the deadline. The Employment Judge was therefore entitled to find that it had been reasonably practicable to present the claim in time.
3. The guidance in Shultz v Esso Petroleum required particular scrutiny of the end of the limitation period, where a late difficulty may arise. That guidance did not assist the claimant because the factual findings excluded such an impediment.
4. The claimant’s alleged reliance on tribunal staff did not disclose an error of law. The Employment Judge had rejected the evidence that incorrect advice had been given before expiry of the time limit. In any event, reliance on tribunal staff would not generally justify a finding that presentation in time was not reasonably practicable where professional advice was available and had been obtained.
5. Regulation 15 was considered as a secondary matter. The claimant’s correspondence threatened legal proceedings and did not reasonably indicate that an ongoing dismissal procedure was being followed. The point could not affect the result because it had been conceded below.
6. The application under rule 3(10), and therefore the underlying appeal, was dismissed. The matter was to return to the Employment Tribunal for a hearing on the substantive claim.

• Employment Appeal Tribunal: The rule 3(10) application and underlying appeal were dismissed.
• Employment Tribunal, London Central: Employment Judge Weiniger held that the claimant’s unfair dismissal claim was out of time and that it had been reasonably practicable to present it within time. Reasons were provided on 22 June 2009, with a review application refused on 24 August 2009.
• Employment Appeal Tribunal sift: His Honour Judge Birtles concluded under rule 3(7) that the appeal disclosed no error of law and was an attempt to reargue the facts.