El -Kholy v Rentokil Initial Facilities Services (UK) Ltd

Where an employee has retained a solicitor to act in relation to a dismissal, the solicitor’s failure to advise on, or meet, the time limit for an unfair-dismissal complaint ordinarily defeats an assertion that timely presentation was not reasonably practicable. The employee’s remedy lies against the adviser.

The addition of “reasonably” to the statutory test did not alter the liberal construction of practicability established under the predecessor provision. There is no difference in principle between ignorance of the right to claim unfair dismissal and ignorance of the applicable time limit. In either case, ignorance caused by an adviser’s fault is not reasonable, although the facts may make reasonable ignorance easier or harder to establish.

The Claimant was dismissed on 4 October 2011. He instructed solicitors shortly afterwards to assist with an internal appeal. His solicitors knew that he disputed the dismissal, but did not advise him about an Employment Tribunal claim or its limitation period. The unfair-dismissal complaint, which should have been presented by 3 January 2012, was presented on 23 January 2012.

An Employment Judge held that the Tribunal lacked jurisdiction under section 111(2) of the Employment Rights Act 1996. The Judge found that the solicitors should have advised the Claimant about the time limit and that their failure meant he had not shown that timely presentation was not reasonably practicable. The Claimant appealed, contending in particular that he had been ignorant of his right to claim unfair dismissal.

1. Appeal dismissed. The Employment Judge made unchallenged findings that the Claimant’s solicitors, retained in connection with his dismissal and internal appeal, should have advised him of the time limit for an unfair-dismissal complaint. The Judge was entitled to treat the late presentation as resulting from the solicitors’ fault.

2. The rule in Dedman, as confirmed by Marks and Spencer plc v Williams-Ryan, applied. Where an employee retains a solicitor and misses the limitation period because of the solicitor’s negligence, the adviser’s fault defeats a contention that it was not reasonably practicable to present the complaint in time. This was not a case in which the Claimant sought or relied on independent, contrary advice, as in London International College v Sen.

3. Section 111 of the Employment Rights Act 1996 did not require a less stringent approach because it uses the phrase “reasonably practicable”. Porter v Bandridge Ltd established that the amendment preserved the liberal construction adopted in Dedman.

4. There is no difference in principle between ignorance of the right to bring an unfair-dismissal complaint and ignorance of the time limit. Under Wall’s Meat Co Ltd v Khan, either form of ignorance must itself be reasonable. It is not reasonable where it arises from the fault of solicitors or other professional advisers who should have supplied the relevant information. The possible difference concerns only the practical ease of proving reasonable ignorance.

5. Williams-Ryan did not decide whether a Citizens Advice Bureau adviser was a skilled adviser. Its result did not turn on attributing any adviser’s fault to the claimant. The Claimant therefore established no error in the Employment Judge’s approach, and the Tribunal had no jurisdiction to hear the unfair-dismissal complaint.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the Employment Judge’s judgment, sent to the parties on 4 July 2012, that it lacked jurisdiction to determine the unfair-dismissal complaint under section 111(2) of the Employment Rights Act 1996.
• Employment Tribunal: The Employment Judge held that the unfair-dismissal complaint was out of time and that the Claimant had not established that timely presentation was not reasonably practicable. The separate race-harassment limitation ruling was not appealed.