University Hospitals Bristol NHS Foundation Trust v Williams

For an unfair-dismissal claim presented after the primary time limit, the tribunal must decide first whether timely presentation was reasonably practicable and then whether presentation occurred within such further period as was reasonable. The latter inquiry is not whether the claim was presented as soon as possible.

Mental illness may make timely presentation not reasonably practicable. The tribunal must assess all the circumstances, including credible oral evidence and the claimant’s ability to manage essential domestic matters. An appellate tribunal will not reopen that factual assessment unless the wrong legal test was applied or the conclusion was perverse.

The claimant was dismissed on 8 April 2011 and presented an unfair-dismissal claim about eight months later. At a pre-hearing review, the Employment Judge found that her serious mental-health difficulties meant that timely presentation had not been reasonably practicable and that the claim had been presented within a reasonable further period.

The employer appealed, alleging errors in the applicable test, the assessment of the claimant’s mental health and medical evidence, the relevance of other proceedings, the adequacy of reasons, and procedural unfairness after the Judge expressed a provisional view before hearing submissions. The claimant was debarred from participating in the appeal. The central issue was whether the Employment Judge had made an error of law in permitting the late claim to proceed.

1. Appeal dismissed. The Employment Judge’s ruling that the tribunal had jurisdiction to hear the unfair-dismissal claim disclosed no error of law.

2. The correct approach is sequential. The tribunal decides whether it was reasonably practicable to present the claim within the initial three-month period. If it was not, the tribunal then decides whether the claim was presented within a reasonable further period. The Employment Judge’s statement that he would require prompt presentation as soon as possible after the initial period misstated the second inquiry. It imposed a more stringent requirement on the claimant than the law required and therefore could not assist the employer’s appeal.

3. The references to the claimant becoming sufficiently stable were properly read in context. They meant sufficiently stable to bear the additional burden of presenting tribunal proceedings. The Judge had applied the correct reasonably-practicable inquiry to the primary period and, if anything, an unduly strict inquiry to the later period.

4. The Employment Judge was entitled to find, from the claimant’s tested oral evidence and the medical material, that her mental-health condition prevented her from presenting the claim earlier. It was irrelevant whether the condition satisfied a technical statutory definition of disability. Her ability to secure accommodation and care for her children did not compel a conclusion that she could also undertake the additional task of bringing proceedings. The finding was one open to the fact-finder and was not challenged as perverse.

5. The Judge was also entitled to take account of the claimant’s failure to respond to other professional proceedings as evidence of her mental state and practical capability. The isolated reference to what was just was surplus language. Read as a whole, the reasons showed that the Judge’s conclusion rested on practicability, including his finding that further action had been impossible for her.

6. Although the Judge prematurely indicated that the claim would be allowed before hearing the employer’s submissions, that did not establish unfairness. A judge may express a provisional view about evidence, provided that the opposing party is heard and the submissions are conscientiously considered. The written reasons showed that the employer’s points were addressed and rejected.

• Employment Appeal Tribunal: dismissed the employer’s appeal and upheld the Employment Judge’s ruling of 14 February 2012 that the tribunal had jurisdiction to hear the late unfair-dismissal claim.
• Employment Tribunal: at a pre-hearing review, held that timely presentation was not reasonably practicable because of the claimant’s mental-health difficulties and that the claim was presented within a reasonable further period.