Paczkowski v Sieradzka

Under section 111(2)(b) of the Employment Rights Act 1996, reasonable practicability is principally a question of fact, determined by close attention to the particular circumstances. A claimant’s ignorance of an automatic unfair dismissal right may be reasonable where the claimant has promptly sought advice. Incorrect advice does not invariably defeat an extension application: the adviser’s failure may itself have been reasonable. The tribunal must examine the status of each adviser, the context in which advice was sought, the information supplied, the questions asked and the advice actually given. Where those findings are absent or inadequately explained, the appellate tribunal should remit the matter rather than substitute its own assessment.

The Claimant brought an automatic unfair dismissal complaint under section 104 of the Employment Rights Act 1996, alleging dismissal for asserting the statutory right to written employment particulars. Her claim was lodged outside the primary three-month limit. She had obtained advice from the Citizens Advice Bureau, ACAS and her trade union, each of whom told her that two years’ service was required to bring an unfair dismissal claim.

The Employment Tribunal found that it had not been reasonably practicable to present the claim in time and that it had been presented within a reasonable further period. The Respondent appealed, contending that the tribunal had failed to ask the correct questions and had made inadequate findings and reasons. The central issue was whether the advice received, and the circumstances in which it was given, could make the failure to present the claim in time reasonably excusable.

1. Appeal allowed. The Employment Tribunal’s conclusion on reasonable practicability was unsafe. The matter was remitted to an Employment Tribunal, with the choice of tribunal left to the Regional Employment Judge.
2. Section 111(2)(b) of the Employment Rights Act 1996 requires a largely factual assessment of whether it was not reasonably practicable to present the complaint within three months and, if so, whether it was presented within a reasonable further period. The provision should be construed liberally in favour of the employee, but ignorance of the right is not automatically sufficient where the relevant facts were known and reasonable steps to obtain advice could have been taken.
3. The principle in Dedman v British Building & Engineering Appliances Ltd and its treatment in Marks & Spencer plc v Williams-Ryan do not mean that every case involving incorrect advice is necessarily excluded. Following Northamptonshire County Council v Entwhistle, an adviser’s failure to give correct advice may itself be reasonable in particular circumstances.
4. In an unusual case involving advice from three separate sources, the tribunal had to make findings about the status of the CAB, ACAS and trade union advisers; the context in which advice was sought; the Claimant’s instructions and information; the questions asked; and the advice actually received. It also had to explain why the limited advice given was reasonable in those circumstances.
5. Although the available material might support more than one conclusion, the EAT could not make the assessment for itself. The issue was remitted for a fresh determination.

• Employment Appeal Tribunal: allowed the Respondent’s appeal from the Employment Tribunal’s decision and remitted the matter to an Employment Tribunal.
• Leeds Employment Tribunal: held that the claim was out of time but that it had not been reasonably practicable to present it within the primary period, and that it had been presented within a reasonable further period.