Community Integrated Care v Peacock

For an unfair-dismissal claim presented outside the primary three-month limit, the tribunal must first decide whether it was reasonably practicable to present the claim in time and, if not, whether it was presented within a reasonable period thereafter.

A pending internal appeal does not extend the statutory period. Where an employee is represented by a solicitor, inadequate or omitted advice about the limitation period is ordinarily attributed to the employee. The tribunal must therefore determine what the employee knew, whether any ignorance was reasonable, and whether the employee was able to instruct the presentation of a claim. Personal difficulties must be assessed against those questions and against the evidence relating to the relevant period.

The employee was dismissed for gross misconduct on 15 June 2009. She consulted a solicitor, appealed internally, and later presented an unfair-dismissal claim on 7 October 2009, outside the three-month statutory period.

The Employment Tribunal held that it had not been reasonably practicable to present the claim in time and that the claim had been presented within a reasonable time thereafter. The employer appealed, contending that the tribunal had applied the wrong legal approach and had failed to account for the solicitor’s involvement and the employee’s ability to deal with matters concerning her dismissal.

The central issues were whether the pending internal appeal, the employee’s health and personal circumstances, or the solicitor’s failure clearly to advise about the limitation period justified extension of time.

1. Appeal allowed; claim dismissed. The Employment Tribunal had treated reasonable practicability as a question of fact alone, rather than as a question of mixed fact and law.
2. The tribunal was required first to ask whether it was reasonably practicable to present the claim within the primary three-month period under Employment Rights Act 1996, section 111, and, if not, whether the claim was presented within a reasonable time thereafter.
3. A pending appeal against dismissal does not suspend or extend the limitation period. Delay in the internal appeal process therefore did not establish that timely presentation was impracticable. This followed the approach in Palmer v Southend-on-Sea Borough Council [1984] IRLR 119.
4. The tribunal had to determine what the employee knew about the time limit and, if she was unaware of it, whether that ignorance was reasonable. The principles in Dedman v British Building and Engineering Appliances Ltd [1974] 1 All ER 520 and Marks & Spencers PLC v Williams Ryan [2008] ICR 193 applied. Incorrect or inadequate advice from an adviser does not ordinarily excuse late presentation.
5. An ordinarily competent solicitor advising on an employment dismissal would generally have a duty to explain the three-month limit and obtain appropriate instructions. The solicitor’s failure clearly to advise the employee was therefore central to the assessment of reasonable practicability. The approach in Northamptonshire County Council v Entwhistle UK EAT/0540/09/ZT supported that conclusion.
6. The findings that the employee attended meetings, dealt with correspondence, instructed an internal appeal and attended the appeal hearing showed that she was capable of taking steps to protect her employment rights. The findings did not establish a debilitating condition preventing her from instructing a tribunal claim during the relevant period.
7. The appeal was upheld and the unfair-dismissal claim was dismissed.

• Employment Appeal Tribunal: Appeal allowed and the unfair-dismissal claim dismissed.
• Employment Tribunal, Glasgow: Held that presentation within the statutory period was not reasonably practicable and that the claim was presented within a reasonable time thereafter.