DHL Supply Chain Ltd v Fazackerley

For the reasonable-practicability exception to the time limit in section 111 of the Employment Rights Act 1996, the tribunal must assess both what the employee knew and what knowledge the employee should reasonably have acquired in all the circumstances. A pending internal appeal alone will not ordinarily make timely presentation impracticable.

However, an employee may reasonably rely on unqualified and erroneous advice from ACAS to complete the internal appeal before taking tribunal action, particularly where the advice omits the statutory time limit. Whether that advice makes timely presentation not reasonably practicable is a fact-sensitive question for the Employment Tribunal. An appellate tribunal will not disturb that assessment unless it discloses an error of law or is perverse.

The claimant was summarily dismissed on 15 March 2017. He pursued an internal appeal, which concluded on 22 June 2017. A few days after dismissal, he had contacted the ACAS helpline and was advised to exhaust the appeal process before taking other action. He was not told of the three-month limitation period.

After the appeal failed, he obtained advice, completed early conciliation and presented claims for unfair dismissal and breach of contract on 19 July 2017. The Employment Tribunal at Cambridge held that it had not been reasonably practicable to present the claims in time and that there had been no unreasonable subsequent delay.

The employer appealed. The central issue was whether the Employment Judge had correctly applied the law on reasonable ignorance and reasonable practicability.

1. Appeal dismissed. The Employment Judge was entitled to find that the claimant had not been able reasonably to present his claims within the primary limitation period under section 111 of the Employment Rights Act 1996.

2. The applicable inquiry required consideration of what the claimant knew about the right to claim and the time limit, and what knowledge he should reasonably have obtained in all the circumstances. A claimant who merely awaits the result of an internal appeal will not thereby establish that timely presentation was not reasonably practicable.

3. This case involved an additional and material circumstance. The judge had found that ACAS gave unqualified advice that the claimant should exhaust the appeal before taking other action, without mentioning either early conciliation or the statutory time limit. Although that advice might have been unobjectionable if an appeal were completed quickly, it was erroneous as an unqualified statement. The claimant was entitled to rely on it, and it was capable of tipping the factual assessment in his favour.

4. The Employment Judge had made sufficient inquiry into the claimant's knowledge and further enquiries. It was for that judge to assess the evidence in the round. Another judge might have reached a different conclusion, but the finding was neither perverse nor affected by an error of law.

5. The judge's limited reliance on an unreported first-instance Employment Tribunal decision did not affect the result. The decision was not binding and merely supported conclusions independently reached by the judge.

• Employment Appeal Tribunal: dismissed the employer's appeal and upheld the Employment Tribunal's conclusion that the late unfair-dismissal and breach-of-contract claims could proceed.
• Employment Tribunal, Cambridge: Employment Judge Bloom held that timely presentation was not reasonably practicable under section 111 of the Employment Rights Act 1996 and that there was no unreasonable subsequent delay. No citation was stated.