Williams v DHL Services Ltd (Jurisdictional Points : Extension of time: reasonably practicable)

Whether presentation of an unfair-dismissal complaint was reasonably practicable must be assessed over the relevant three-month period. Illness arising only near the end of that period does not establish that timely presentation was not reasonably practicable where the claimant had an earlier, unexplained opportunity to present the claim.

The tribunal may also take account of the scale of any delay and whether the claimant acted promptly after learning that a claim should be made. An appellate tribunal will not interfere with a factual finding on reasonable practicability where the material supports it.

The claimant appealed under rule 3(10) from Employment Judge Vowles’s decision at a pre-hearing review on 4 December 2012. The Employment Tribunal struck out his unfair-dismissal complaint as presented outside the three-month period in section 111(2) of the Employment Rights Act 1996.

The claimant’s employment ended on 13 August 2011 and the claim was due by 12 November 2011. It was presented on 18 September 2012. He relied on back pain from 3 November 2011 and said that he was confined to bed. The central issue was whether it had not been reasonably practicable to present the claim in time.

1. Appeal dismissed. The Employment Appeal Tribunal found no basis to interfere with the Employment Judge’s factual conclusion that timely presentation had been reasonably practicable.

2. The relevant inquiry under section 111 of the Employment Rights Act 1996 concerned practicability throughout the three-month period. The claimant had approximately 11 weeks between the end of his employment and the onset of the illness on which he relied. He gave no explanation, supported by the papers, for not presenting the claim during that period.

3. Judge McMullen QC accepted that an event in the final part of the limitation period can require close consideration. He had regard to Schultz v Esso Petroleum Ltd, [1999] IRLR 488. But the claimant supplied no material showing that his back pain during the final nine days made presentation impracticable. Even while in bed, he was being cared for and there was no identified obstacle to submitting a form if he had decided to do so.

4. The claim was presented almost a year late. The claimant also gave no dates or explanation showing that he acted promptly after learning that he should bring the claim. An unsupported suggestion in a later letter that he had not known of his right to complain was not advanced by him and was disregarded.

5. The claimant had sought written reasons from the Employment Judge outside the applicable time limit. No renewed request was made at the hearing, and the Employment Appeal Tribunal saw no reason to challenge the refusal.

• Employment Appeal Tribunal: Rule 3(10) application heard afresh. The appeal from the Employment Tribunal was dismissed.
• Employment Tribunal: At a pre-hearing review on 4 December 2012, Employment Judge Vowles held that the unfair-dismissal complaint was out of time and that timely presentation had been reasonably practicable. The complaint was struck out.