Tesco Stores Ltd v Kayani

Under section 111 of the Employment Rights Act 1996, a tribunal must address separately whether timely presentation was reasonably practicable and, if not, whether the claim was brought within a reasonable further period. It must confine its assessment at each stage to the evidence relevant to that period.

Where a claimant has instructed solicitors, the adequacy of their advice and conduct is a material consideration. This includes advice on fee remission and compliance with early-conciliation requirements. Early conciliation is an essential, rather than merely technical, requirement. Under section 123 of the Equality Act 2010, the discretion is broad, but the tribunal must still give a clear analysis of the causes of delay and of the period after expiry.

The claimant brought claims arising from her dismissal, including unfair dismissal and pregnancy-related sex discrimination. Her claims were presented after the primary three-month limitation periods. She had instructed solicitors before expiry, but lacked funds to issue proceedings. She also experienced a difficult pregnancy, childbirth by caesarean section and subsequent housing difficulties.

An attempted claim on 2 June 2015 and a later claim lodged by her solicitors were rejected because the early conciliation certificate number was omitted. The Employment Tribunal allowed extensions of time. Tesco appealed, contending that the Tribunal had failed properly to analyse the role of the claimant’s solicitors, the separate statutory stages of the reasonable-practicability test, and the delay in complying with early-conciliation requirements.

1. Appeal allowed. The Employment Judge’s decision to extend time could not stand and the extension issues were remitted to a freshly constituted Tribunal.

2. Section 111 of the Employment Rights Act 1996 requires two distinct inquiries: whether it was reasonably practicable to present the claim within the primary period, and, only if it was not, whether it was presented within a reasonable further period. The Employment Judge conflated those inquiries. He therefore relied on matters arising after expiry when deciding reasonable practicability, while failing to analyse material matters relevant before expiry.

3. The claimant had instructed solicitors to commence proceedings if the respondent did not respond. The Tribunal was required to consider the adequacy of the solicitors’ advice, including the apparent absence of advice about fee remission. It was not inevitable that the solicitors had been negligent, but their possible fault was a material issue which the Tribunal had failed to address. The anticipated birth was also not an unforeseen event capable, without further analysis, of explaining the earlier failure to issue.

4. The Tribunal also failed to analyse the period from 2 June to 1 September. Once a claim had been submitted on 2 June, recovery from surgery could not simply be treated as explaining the whole subsequent delay. Compliance with early-conciliation requirements was essential, not a technicality, and the Tribunal had to examine the delay in remedying the omitted certificate number and the solicitors’ conduct during that period.

5. The discretion under section 123 of the Equality Act 2010 is very broad. Nevertheless, the Tribunal’s reasoning had to demonstrate a careful analysis of why the limit was missed and whether the later period was properly accounted for. Its failure on those matters similarly rendered its just-and-equitable decision erroneous in law.

• Employment Appeal Tribunal: allowed Tesco’s appeal and remitted the extension-of-time issues to a freshly constituted Employment Tribunal.
• Employment Tribunal: Employment Judge Bedeau, by a decision dated 2 March 2016, allowed the claimant’s out-of-time claims to proceed.