Reed In Partnership Ltd v Fraine

For an extension of time, the claimant must show that it was not reasonably practicable to present the complaint within the statutory period and that it was presented within a reasonable time afterwards.

Ignorance of the limitation period, or of the date from which it runs, must itself be reasonable. A claimant who knows of the right to claim and the three-month limit, but makes no inquiry and relies on an unsupported assumption about the start date, will ordinarily fail to satisfy the test. The Employment Appeal Tribunal may interfere where the tribunal’s conclusion is inadequately reasoned or legally perverse.

Mr Fraine was summarily dismissed on 20 April 2009. He presented claims for unfair dismissal and wrongful dismissal on 20 July 2009, one day outside the applicable three-month period.

The Employment Judge accepted that Mr Fraine misunderstood the calculation of the limitation period and extended time under section 111(2)(b) of the Employment Rights Act 1996. The Respondent appealed, contending that the finding that the ignorance was reasonable was inadequately reasoned and perverse. The central issue was whether the mistaken belief about the commencement date made it not reasonably practicable to present the claims in time.

1. The appeal was allowed. The Employment Judge had correctly directed himself that ignorance must be reasonable, but gave no adequate reasoning for finding that Mr Fraine’s ignorance was reasonable.

2. The statutory period runs from the effective date of termination. The date of dismissal counts towards the three-month period under section 111(2)(a) of the Employment Rights Act 1996.

3. In assessing reasonable practicability, the tribunal must examine the circumstances of the claimant’s ignorance, including the opportunities available to discover the correct position, whether inquiries were made, and whether the claimant was misled or deceived. A claimant who knows of the right to claim and the applicable three-month limit, but makes no inquiry and relies on an unsupported assumption about the start date, cannot ordinarily establish reasonable ignorance.

4. On the facts found, Mr Fraine had not been misled by the Respondent, the Tribunal, an adviser or another agency. He had made no relevant inquiries and had no proper basis for assuming that time began on the day after dismissal. It was therefore reasonably practicable for him to present both claims in time.

5. Using the power under section 35 of the Employment Tribunals Act 1996, the EAT set aside the extension and dismissed the unfair dismissal and wrongful dismissal complaints. The separate unlawful deductions claim remained for determination by the Employment Tribunal.

• Employment Appeal Tribunal: allowed the Respondent’s appeal, set aside the Employment Judge’s extension of time and dismissed the unfair dismissal and wrongful dismissal complaints.
• Employment Tribunal: extended time for presentation of the unfair dismissal claim, with the same considerations applying to the wrongful dismissal claim.