EBAY (UK) Ltd v Buzzeo

Where a claimant has consulted a skilled adviser, a failure to meet the primary unfair-dismissal time limit caused by the adviser’s negligence will ordinarily prevent a finding that timely presentation was not reasonably practicable. The tribunal must, however, determine whether the advice was in fact negligent. Incorrect advice may itself be reasonable where the employer’s conduct or uncertainty over the effective date of termination reasonably misled both claimant and adviser.

The statutory inquiry remains fact-sensitive. A medical condition is relevant only if it contributed to the inability to present in time. The tribunal must also make findings on the effective date of termination; it cannot assume that date without deciding disputed contractual relationships and notices.

The claimant worked within eBay’s team while invoicing, and being paid by, an outsourcing organisation, Helm. eBay disputed that it employed her. On 30 March 2012, an eBay representative told her that her services were no longer required and that she would receive one month’s notice. Helm subsequently sent an email stating that its contract would end on 5 May 2012.

The claimant presented claims for unfair dismissal and breach of contract on 30 July 2012. She relied on advice that she had three months from 5 May 2012, and also relied on pregnancy-related illness. Employment Judge Hyde held that the claims could proceed, extending time on the ground that timely presentation had not been reasonably practicable.

eBay appealed. The central issues were the effective date of termination and whether the Employment Judge had correctly applied the statutory reasonable-practicability test where the claimant had obtained legal advice.

1. Appeal allowed. The time-limit issue was remitted for a fresh hearing before a different Employment Judge, together with the unresolved contractual-status issues.

2. The Employment Judge erred by failing to determine whether the solicitor’s advice about the expiry of the limitation period was negligent. Under section 111 of the Employment Rights Act 1996, negligent advice from a skilled adviser which causes a missed deadline defeats a contention that presentation in time was not reasonably practicable. The Judge referred to that rule but did not make the essential factual finding.

3. It was not, however, self-evident that the advice was negligent. If Helm acted as eBay’s intermediary, the formal notice from Helm might have been understood to give notice on eBay’s behalf. The Employment Tribunal had to determine the contractual reality and the effect of the respective communications before deciding that issue.

4. Pregnancy-related illness could be relevant only if it contributed to the claimant’s inability to present her claim in time. The reasons did not explain such a causal connection. Conversely, Helm’s email was not merely background: it was central to the claimant’s and adviser’s understanding of the relevant termination date and limitation period.

5. The Employment Judge also made no finding of the effective date of termination. That question required careful factual findings and might depend on the contractual relationships. It could not be assumed that termination occurred more than three months before the claim was presented.

• Employment Appeal Tribunal: Allowed eBay’s appeal and remitted the time-limit issue, with the contractual issues, for a fresh hearing before a different Employment Judge.
• Employment Tribunal: Employment Judge Hyde, by judgment dated 23 January 2013, held that the tribunal had jurisdiction to determine the unfair-dismissal and breach-of-contract claims after extending time.