Solus (London) Ltd v Matthews

Under section 111(2) of the Employment Rights Act 1996, the questions whether it was reasonably practicable to present an unfair-dismissal complaint within time and whether it was presented within a reasonable further period are distinct. Administrative delay occurring after expiry of the statutory period cannot establish that timely presentation was impracticable. A mistake in selecting the tribunal is not necessarily fatal, but the claimant must show that the mistake was reasonably made. Where the lower tribunal has made insufficient findings on that issue, and the result is not plain, the proper course is remission for a fresh factual decision.

Mr Matthews was dismissed by Solus on 2 February 2009. He knew of his right to claim unfair dismissal but submitted an online claim on 29 April 2009 to the Industrial Tribunals and Fair Employment Tribunal in Northern Ireland rather than to an Employment Tribunal in England and Wales. The Northern Ireland office rejected the claim on 17 June 2009, after the primary time limit had expired. Mr Matthews promptly presented a claim in England and Wales on 29 June 2009.

The Employment Tribunal held that it had jurisdiction, treating the administrative delay as substantially compounding the original mistake. Solus appealed, arguing that the tribunal had applied the wrong test under section 111(2).

1. Appeal allowed and decision set aside. The Employment Tribunal had elided two separate questions under section 111(2) of the Employment Rights Act 1996: first, whether it was reasonably practicable to present the claim within the three-month period; and secondly, if not, whether the claim was presented within such further period as the tribunal considered reasonable.
2. Administrative delay by the Northern Ireland tribunal office occurred after the statutory period expired. It therefore could not bear on whether it had been reasonably practicable to present the claim in time.
3. The claimant’s mistake in presenting the claim to the wrong tribunal was not necessarily fatal. Applying the approach in Wall's Meat Co Ltd v Khan [1979] ICR 52, ignorance or mistaken belief may constitute an impediment only where it was itself reasonable, having regard to the inquiries the claimant should reasonably have made.
4. The Employment Tribunal made insufficient findings about the precise mistake and whether it was reasonable. The issue was factual and the result was not plain. The Employment Appeal Tribunal could not fairly substitute its own decision without the claimant and his mother, further evidence and relevant documents being available.
5. The matter was remitted for a fresh hearing before a differently constituted Employment Tribunal, which was to start from scratch.

• Employment Tribunal, Bedford: On 16 December 2009, held that Mr Matthews had presented his unfair-dismissal claim within the tribunal’s jurisdiction under section 111(2) of the Employment Rights Act 1996.
• Employment Appeal Tribunal: Allowed Solus’s appeal, set aside the decision, and remitted the matter for rehearing before a fresh tribunal.