Sheredes School v Davies

For the extension in section 111(2)(b) of the Employment Rights Act 1996, a claimant’s ignorance of the need to lodge a claim is not a reasonable impediment where it results from a solicitor’s failure to give advice which the solicitor ought reasonably to have given. An external event may explain a solicitor’s later default, but it does not make timely presentation impracticable if proper advice given before that event would have enabled the claimant to present in time.

A tribunal must address that causative counterfactual. Where the evidence admits only one conclusion, the appellate tribunal may substitute the conclusion that presentation was reasonably practicable and that the unfair-dismissal claim is time-barred.

The claimant, a school caretaker, was dismissed and instructed solicitors regarding employment and housing matters. Following early conciliation, his unfair-dismissal claim had to be presented by 25 October 2015. On 8 October the solicitors advised him to seek another firm, but did not advise him to lodge a claim urgently.

The solicitors’ firm was subject to an SRA intervention on 14 October. The claimant and his wife obtained fresh advice on 5 November and lodged an ET1 without legal assistance on 10 November, 16 days late.

The Employment Tribunal held that the intervention made timely presentation not reasonably practicable under section 111(2)(b) of the Employment Rights Act 1996. The School appealed. The central issue was whether the Tribunal had failed to consider the advice that should have been given before the intervention and its effect on timely presentation.

1. Appeal allowed. The Employment Judge erred in law by treating the SRA intervention as the operative reason for the late claim without deciding what the solicitors should have advised on 8 October 2015 and what would have happened had that advice been given.
2. Under section 111(2)(b) of the Employment Rights Act 1996, timely presentation is not reasonably practicable only where a reasonable impediment prevents, interferes with, or inhibits it. Reasonable ignorance may constitute such an impediment, but not where it results from a claimant’s or professional adviser’s failure to provide information that ought reasonably to have been provided. This applied the approach stated in Wall’s Meat Co Ltd v Khan [1978] IRLR 499 CA, and was consistent with the treatment of adviser default in Riley v Tesco Stores Ltd [1980] IRLR 103 CA and Trevelyans (Birmingham) Ltd v Norton [1991] ICR 488.
3. The solicitors plainly should have told the claimant on 8 October of the urgent need to lodge a claim by 25 October. Had they done so, he could have presented it in time, as his later unassisted presentation showed. The failure was therefore attributable to the solicitors’ earlier omission, not to the subsequent intervention. The intervention might have been a special reason in a different factual sequence, but it could not excuse the prior failure here.
4. There was only one permissible conclusion: timely presentation was reasonably practicable. The EAT therefore substituted a decision that the unfair-dismissal claim was out of time and that the Employment Tribunal lacked jurisdiction. Remittal was unnecessary.
5. The claimant’s cross-appeal concerning an amendment to advance automatic unfair dismissal under section 103A was academic once the principal claim was held out of time, and was dismissed.

• Employment Appeal Tribunal: allowed the School’s appeal, substituted a finding that the unfair-dismissal claim was time-barred, and dismissed the claimant’s cross-appeal as academic.
• Employment Tribunal: Employment Judge Manley had permitted the late unfair-dismissal complaint to proceed under section 111(2)(b) of the Employment Rights Act 1996.