Stephens v Kingston University Higher Education Corporation

For an extension under section 111(2) of the Employment Rights Act 1996, reasonable ignorance of tribunal rights or time limits requires the claimant to have taken reasonable steps to acquire the necessary knowledge. Consultation with a CAB does not automatically defeat such a claim. However, where a claimant has consulted a person who should have supplied competent employment advice, reasonable practicability is assessed by reference to the advice that should have been given. A claim must in any event be presented within a reasonable further period.

A tribunal must identify the actual fixed-term employee complaint. A complaint under regulation 3 of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 is distinct from victimisation under regulation 6. If regulation 3 is potentially engaged, the tribunal must decide whether a just and equitable extension under regulation 7(3) is warranted.

The claimant’s fixed-term employment ended on 31 May 2006. He presented Employment Tribunal claims on 5 April 2012, about five and a half years after expiry of the primary limitation period. Employment Judge Hyde, sitting at the London South Employment Tribunal, dismissed the claims under the Employment Rights Act 1996 as time-barred and struck out the claim under the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. The judgment and reasons were promulgated on 27 July 2012.

The claimant appealed. The central issues were whether the Employment Judge erred in refusing an extension under section 111(2), and whether she had wrongly confined the fixed-term claim to victimisation under regulation 6 rather than considering a potential regulation 3 detriment complaint and the just and equitable extension in regulation 7(3).

1. Appeal allowed in part. The appeal against the refusal to extend time for the claims under section 111(2) of the Employment Rights Act 1996 was dismissed. The appeal succeeded only on the fixed-term employee claim, which was remitted to the same Employment Judge, if practicable.
2. The question whether it was reasonably practicable to present a claim in time is essentially factual. The Employment Appeal Tribunal should be slow to interfere with an experienced Employment Judge’s evaluative decision. The reasonable-ignorance approach requires more than ignorance of rights: the claimant must have taken reasonable steps to obtain the necessary knowledge.
3. The claimant acted reasonably in approaching the CAB during the primary limitation period. Consultation with a CAB did not, by itself, preclude a finding that timely presentation had not been reasonably practicable. However, on the accepted material, the claimant had subsequently consulted a person presented as an employment lawyer who should have advised on an Employment Tribunal claim. Applying the skilled-adviser principle, the question was what could reasonably have been done had proper advice been given. Even assuming that timely presentation had not initially been reasonably practicable, it would have been reasonable to present the claim on or shortly after 15 September 2006. Presentation in April 2012 was not within a reasonable further period. The Employment Judge’s alternative conclusion was permissible and adequately reasoned.
4. The Employment Judge erred by treating the fixed-term complaint solely as victimisation under regulation 6 of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. The pleadings potentially raised a regulation 3 complaint that the claimant had suffered detriment, compared with a permanent employee, in the handling of his harassment complaint. The Judge had therefore failed to determine whether it was just and equitable under regulation 7(3) to extend time for that distinct complaint.
5. That issue involved factual questions and was remitted to Employment Judge Hyde. Her prior decision did not require a different judge: her error was the omission to consider regulation 3, and the just-and-equitable inquiry differed from the reasonable-practicability inquiry.

• Employment Appeal Tribunal: Appeal allowed in part. The regulation 7(3) issue was remitted to the same Employment Judge, if practicable.
• Employment Tribunal, London South: Employment Judge Hyde dismissed the Employment Rights Act 1996 claims as time-barred and struck out the fixed-term employee complaint. Judgment and reasons were promulgated on 27 July 2012.