Lowri Beck Services Ltd v Brophy

For employment tribunal time limits, reasonable practicability is assessed liberally in favour of the employee and is not confined to physical impossibility. A reasonable misunderstanding about when dismissal took effect may justify an extension where the tribunal considers the misunderstanding reasonable in context. The claimant’s or adviser’s failure to make reasonable enquiries remains relevant, and an unreasonable mistake by a skilled adviser may be attributed to the claimant. For disability discrimination claims, the just and equitable discretion is wide and requires no fixed checklist, although delay, its reasons and prejudice will usually matter. An appellate court should not entertain a new limitation argument requiring factual findings that were not made below.

The claimant, who was severely dyslexic, was dismissed by telephone on 29 June 2017 and received a formal letter on 6 July. He presented claims for unfair dismissal, wrongful dismissal and disability discrimination on 5 December 2017, outside the primary limitation periods.

The Employment Tribunal found that his misunderstanding about the effective date of termination was reasonable and extended time for the unfair and wrongful dismissal claims. It also considered it just and equitable to extend time for the disability discrimination claim. The Employment Appeal Tribunal dismissed the employer’s appeal. The central issues before the Court of Appeal were whether the Employment Tribunal had erred in accepting the misunderstanding as reasonable, whether a further limitation argument could be raised for the first time on appeal, and whether it had properly exercised the just and equitable discretion.

1. Appeal dismissed. Underhill LJ, with whom David Richards LJ agreed, upheld the Employment Tribunal’s extensions of time.
2. The reasonable-practicability test for unfair and wrongful dismissal claims must be interpreted liberally in favour of the employee. It is not limited to physical impossibility. The authorities included Marks and Spencer plc v Williams-Ryan [2005] EWCA Civ 470, Palmer and Saunders v Southend-on-Sea Borough Council [1984] IRLR 119 and Wall’s Meat Co Ltd v Khan [1979] ICR 52.
3. The Employment Tribunal was entitled to find that the claimant and his brother reasonably understood the formal dismissal to take effect when the letter was received. The letter’s reference to dismissal taking effect on 29 June created ambiguity, but did not make further advice mandatory. The assessment was factual and was not an error of law of the kind considered in Biggs v Somerset County Council [1996] IRLR 203.
4. A new challenge to the extension, not raised below and requiring appropriate factual findings, should not be entertained on appeal. In any event, the reason for the delay after the claimant’s mistaken date depended substantially on the reasonableness of that initial mistake.
5. The discretion under section 123(1)(b) of the Equality Act 2010 is wide. No statutory checklist is mandatory. Length and reasons for delay and prejudice are usually relevant, but the Employment Tribunal must not leave a significant factor out of account. The absence of identified prejudice was not treated as determinative in isolation; the Tribunal had also relied on its findings concerning the reasonable mistake and the subsequent delay.
6. The court expressed doubt that the limitation point could be revived at the merits hearing merely because it was described as jurisdictional, but did not decide that issue. It also criticised the absence of a second-appeals test for appeals from the Employment Appeal Tribunal.

• Court of Appeal (Civil Division): Appeal dismissed. [2019] EWCA Civ 2490
• Employment Appeal Tribunal: Appeal from the Employment Tribunal dismissed.
• Employment Tribunal: Claims were out of time under the primary limits, but extensions were granted for unfair dismissal, wrongful dismissal and disability discrimination claims.