Norbert Dentressangle Logistics Limited v Hutton

Under section 111(2) of the Employment Rights Act 1996, the tribunal must first decide whether presentation within three months was not reasonably practicable and, if so, whether presentation in the actual further period was reasonable. These are fact-sensitive questions. The whole initial period must be considered, with particular attention to its closing weeks.

A credible finding that a claimant’s mental condition prevented effective action may establish impracticability even without medical evidence. Such findings will be rare and are ordinarily for the Employment Tribunal. An appeal court may not replace a permissible assessment of the claimant’s credibility with its own view merely because it would have reached a different conclusion.

The claimant, a senior employee, was dismissed following disciplinary proceedings. The effective date of termination was agreed to be 18 January 2012. His dismissal appeal was rejected on 7 March 2012.

He presented claims for unfair dismissal and unlawful deduction from wages on 30 May 2012, six weeks after expiry of the three-month limitation period. At a pre-hearing review, the Employment Tribunal held that it had jurisdiction. It accepted his evidence that mental ill-function prevented him from presenting a claim in time and that he filed it as soon as he felt able.

The employer appealed. The central issues were whether those findings were perverse, whether medical evidence was necessary, and whether the six-week further delay was reasonable.

1. Appeal dismissed. The Employment Tribunal’s decision was imperfectly expressed and the Appeal Tribunal had substantial reservations about aspects of its reasoning. Nevertheless, read as a whole, it made a permissible factual finding that the claimant’s ability to function had markedly deteriorated after 4 April 2012. That finding depended on its assessment of his oral evidence and credibility.
2. Section 111(2) of the Employment Rights Act 1996 creates two separate questions. The claimant must establish that presentation within the initial three months was not reasonably practicable. If that is established, the tribunal must decide whether presentation within the actual further period was reasonable. The assessment concerns the whole initial period, but the closing weeks require particular attention, consistently with Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 and Schultz v Esso Petroleum Company [1999] IRLR 488.
3. The Employment Tribunal was entitled to accept that mental incapacity prevented the claimant from filing a claim. Medical evidence is desirable but not essential. A tribunal should be sceptical of an unsupported assertion that a claimant could not bring themselves to issue a claim, and cases in which it accepts such an assertion will be rare. However, there is no legal bar to such a finding where the tribunal has assessed the witness and accepts the evidence.
4. Evidence of the claimant’s condition after the material period, including later GP evidence, was relevant though not conclusive. It could permissibly assist the tribunal in deciding whether the same condition existed during the earlier period.
5. Having accepted that the claimant filed the claim as soon as his mental condition permitted, the Employment Tribunal was entitled to find the six-week further period reasonable. Its conclusions were not perverse and disclosed no error of law.

• Employment Appeal Tribunal: dismissed the employer’s appeal and upheld the Employment Tribunal’s jurisdictional ruling: [2013] UKEAT 0011_13_0608.
• Employment Tribunal, Glasgow: at a pre-hearing review, held that it had jurisdiction to determine the unfair-dismissal and unlawful-deduction claims. Reasons were given on 4 September 2012.