Lowri Beck Services Ltd v Brophy

The Court of Appeal dismissed the employer's appeal against the Employment Appeal Tribunal's dismissal of its challenge to an Employment Tribunal decision to extend time for claims of unfair dismissal, wrongful dismissal and disability discrimination. The court applied the statutory limitation rules: section 101 of the Employment Rights Act 1996 (three-month primary time limit with an extension where it was not reasonably practicable to present the claim in time) and section 123(1) of the Equality Act 2010 (three-month primary time limit with a just and equitable extension). The tribunal's factual findings that the claimant, who was severely dyslexic, reasonably relied on his brother and that there was a reasonable misunderstanding about the effective date of termination were within the range of permissible conclusions and did not involve error of law. The court therefore upheld the Employment Tribunal's liberal exercise of the extension powers and the Employment Appeal Tribunal's refusal to interfere.

Background and facts:

• The claimant was employed as a meter operative by the appellant and is severely dyslexic, relying on his brother for assistance in official matters.
• Following a disciplinary hearing on 21 June 2017, the claimant was telephoned on 29 June and told he was dismissed for gross misconduct with immediate effect. A formal letter dated 4 July was received by the claimant on 6 July and referred to the telephone call and to dismissal being effective from 29 June.
• The claimant's brother handled communications and drafted correspondence; he believed the dismissal took effect in early July. The claimant presented claims on 5 December 2017 for unfair dismissal, disability discrimination and wrongful dismissal.

Procedural posture:

• The Employment Tribunal held a preliminary hearing on limitation and concluded that, although the claims were outside the primary three-month time limits, time should be extended: by reason of it not being reasonably practicable for the claim to be presented in time (Employment Rights Act 1996, s.101) and in the interests of justice and equity for the disability discrimination claim (Equality Act 2010, s.123(1)).
• The Employment Appeal Tribunal (HHJ Eady QC) dismissed the employer's appeal. The employer appealed to the Court of Appeal.

Issues framed by the court:

• Whether the Employment Tribunal erred in law in finding it was not reasonably practicable for the claimant to present his unfair and wrongful dismissal claims within the primary period, given the content of the letter stating dismissal effective from 29 June.
• Whether the tribunal erred in extending time for the disability discrimination claim under section 123(1) of the Equality Act 2010.
• Relatedly, whether the ACAS early conciliation (EC) certificate affected the available extension and whether the tribunal addressed the period between when it became practicable to present a claim and the actual presentation date.

Court's reasoning and disposition:

• The court reviewed the applicable tests and authorities on reasonable practicability and the wide discretion under section 123(1). It noted the tribunal's findings that the claimant was vulnerable due to dyslexia, that he relied on his brother, that there was a brief telephone call on 29 June which the claimant did not fully convey to his brother, and that the 4 July letter was ambiguous to lay readers.
• The Court of Appeal concluded that these factual findings were open to the Employment Tribunal and did not amount to an error of law. It was reasonable for lay people to treat a formal letter as communicating a dismissal and to understand it as effecting dismissal on receipt, particularly given prior statements that a letter would follow.
• The ACAS EC certificate dated 13 November, recording contact on 30 September, meant the statutory early conciliation extension did not operate because the primary limit expired on 29 September. The court acknowledged an arguable separate point about the period between when it became practicable to present a claim and the eventual presentation date, but considered that point was not argued below and would require fact-finding; it therefore declined to admit it on appeal. The appeal was dismissed.

Appeal dismissed. The Court of Appeal found no error of law in the Employment Tribunal's factual assessment that the claimant, a person with severe dyslexia, reasonably relied on his brother and that a reasonable misunderstanding arose about the effective date of termination; the tribunal's decision to extend time under section 101(2) of the Employment Rights Act 1996 and to grant a just and equitable extension under section 123(1) of the Equality Act 2010 was within the permissible range of conclusions and not susceptible to appellate interference.

Appeal to the Court of Appeal from the Employment Appeal Tribunal (HHJ Eady QC) which had dismissed the appellant's challenge to the Employment Tribunal's decision on limitation. The Employment Tribunal had decided at a preliminary hearing to extend time for unfair dismissal, wrongful dismissal and disability discrimination claims.