Andrews v Kings College Hospital NHS Foundation Trust & Anor

An Employment Tribunal may strike out a claim for lack of reasonable prospects only where, after careful consideration of the available material, there are no reasonable prospects of success. A delay in joining an occupational pension scheme may support an evidential inference that an employee would not previously have joined. It creates no legal presumption and must be assessed with all the circumstances.

For a late contractual claim under section 7 of the Industrial Tribunals (Extension of Jurisdiction) Order 1994, a mistaken belief about the time limit can make timely presentation not reasonably practicable where the belief was reasonably induced by an authoritative employer representative and the claimant was not at fault. The reasonableness of any further delay must be assessed on the actual evidence.

The claimant was a part-time clinical nurse specialist. She claimed retrospective pension membership for three periods. Her claim for the earliest period succeeded and was not disputed.

For 1988 to 1991, full-time staff could choose pension membership but part-time staff were excluded. The Employment Tribunal struck out the equal-pay claim, finding no reasonable prospect that the claimant would have joined had she been eligible. For 1991 to 2005, the claimant alleged breach of an implied contractual term to inform her of a beneficial change in pension arrangements. The Tribunal dismissed that claim as out of time.

The claimant appealed both decisions. The issues were whether strike-out was permissible and whether it had been reasonably practicable to present the contractual claim within three months, or whether the further period taken was reasonable.

1. Appeal allowed. The decisions striking out the 1988–1991 equal-pay claim and dismissing the 1991–2005 contractual claim were quashed. Both claims were to proceed before the Employment Tribunal in the normal way.

2. On the equal-pay claim, the necessary question was whether the claimant would probably have joined the pension scheme had she been given the same option as full-time employees. Failure to join once eligible may be powerful evidence on that issue, but it is an evidential matter rather than a legal presumption. It requires an assessment of all the facts.

   The Tribunal applied an insufficiently stringent approach to strike-out. Its reasoning depended on a 15-year delay even though it had found that the claimant did not know she was eligible to join during that period. It also appeared to impute to her either knowledge or negligence of her pension adviser. Those matters might be advanced at a full hearing, but they could not establish that the claim had no reasonable prospect of success.

3. On the contractual claim, the Tribunal had to apply section 7 of the Industrial Tribunals (Extension of Jurisdiction) Order 1994. A mistaken belief about a limitation period is an impediment only where the belief is reasonable and does not arise from the claimant’s or professional adviser’s fault.

   The claimant’s mistaken belief that she had six months was induced by the employer’s head of payroll and pensions, who dealt authoritatively with her pension grievance and post-retirement enquiry. He was not merely a casual source of information. The claimant reasonably relied on him and was not at fault. It was therefore not reasonably practicable to present the claim within three months.

4. The Tribunal also erred in finding no detailed justification for the further delay. The evidence showed continuing enquiries, a delayed response from the employer’s representative, and subsequent efforts to obtain legal advice. In the circumstances, presentation within the six months the claimant reasonably believed applied was within a reasonable further period.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and quashed the Employment Tribunal’s strike-out of the equal-pay claim for 1988–1991 and dismissal of the contractual claim for 1991–2005.
• Employment Tribunal: Struck out the equal-pay claim for 1988–1991 as having no reasonable prospect of success. It dismissed the contractual claim for 1991–2005 as out of time under section 7 of the Industrial Tribunals (Extension of Jurisdiction) Order 1994.