Remploy Ltd v Brain

For the purposes of extending the time limit for an unfair dismissal claim, the question under Employment Rights Act 1996, section 111 is whether presentation within the prescribed period was reasonably practicable. Informal or unpaid advice from a solicitor does not automatically prevent a claimant from relying on that provision. The tribunal must assess all the circumstances, including the nature of the advice and the claimant’s reliance upon it. The distinction between instructing an adviser to conduct proceedings and obtaining advice while retaining responsibility for the claim does not require an automatic result. Whether a further period was reasonable is also a fact-sensitive question involving a wide tribunal discretion. Appellate intervention is justified only for an error of principle or a conclusion no reasonable tribunal could reach.

The claimant was dismissed for gross misconduct and pursued a three-stage internal appeal. She was unaware of the three-month time limit for an unfair dismissal complaint. After receiving informal advice from a solicitor to pursue the internal process first, she learned of the time limit from a former colleague. She presented her claim after obtaining the tribunal’s paperwork and completing the final internal appeal stage.

An Employment Judge held that it had not been reasonably practicable to present the claim within three months and that it was presented within such further period as was reasonable. The employer appealed, alleging misdirection on reasonable practicability and perversity in the assessment of delay.

1. Appeal dismissed. The Employment Judge had jurisdiction to consider the unfair dismissal claim.
2. The governing question was the statutory language in section 111 of the Employment Rights Act 1996. A claimant’s asserted ignorance of the time limit is not conclusive. The tribunal must assess whether the ignorance was reasonable, having regard to the claimant’s enquiries, advice and conduct.
3. The fact that the claimant received mistaken advice from a solicitor did not automatically defeat the reasonable-practicability argument. Riley v Tesco Stores Ltd widened the category of advisers whose fault may be attributed to a claimant, but it did not establish that bad advice from every third party has that effect.
4. It was open to the Employment Judge to find that the claimant reasonably relied on specific advice to pursue the internal appeal first, notwithstanding that the solicitor was not retained or paid. The suggested automatic distinction between an adviser conducting the claim and an adviser giving one-off advice was not required by section 111 and was difficult to sustain as a matter of logic or authority.
5. The question of reasonable practicability was essentially factual, and appellate courts should be slow to interfere. The finding that the claimant acted promptly after learning of the time limit was also open to the tribunal. Waiting for the tribunal pack, completing the final appeal and taking five days to prepare the claim form did not make the conclusion perverse.
6. The threshold for perversity was very high. The tribunal’s assessment of the further period under section 111(2)(b) involved a wide discretion, which had been exercised judicially.

• Employment Appeal Tribunal: dismissed the employer’s appeal against the Employment Judge’s decision following a pre-hearing review.
• Employment Tribunal: held that it had not been reasonably practicable for the claimant to present her complaint within three months and that she had presented it within such further period as was reasonable.