Inchcape Retail Ltd v Shelton

For the extension in section 111(2) of the Employment Rights Act 1996, reasonable ignorance of the time limit may make timely presentation not reasonably practicable. Where a claimant knows of a right to claim unfair dismissal, however, the tribunal must decide whether it was reasonable to expect the claimant to make enquiries about how and when that right could be enforced.

A pending internal appeal, and a belief that it must first be exhausted, do not alone answer that question. The assessment is fact-specific and includes the claimant’s opportunities to obtain information or advice. The same considerations may bear on whether a claim was presented within a further reasonable period.

The claimant was summarily dismissed for alleged gross misconduct. He appealed internally and, believing that the appeal had to be completed before he could bring tribunal proceedings, did not contact ACAS until after the primary limitation period had expired.

The Employment Judge held that the claimant’s ignorance of the time limit was reasonable and that it had not been reasonably practicable to present his unfair dismissal complaint in time. The employer appealed on a question of law. The central issue was whether the Employment Judge had sufficiently addressed whether the claimant, knowing that he could challenge his dismissal, should reasonably have made enquiries about enforcing that right.

1. Appeal allowed. The Employment Judge failed to address a critical issue required by the reasonable-practicability test in section 111(2) of the Employment Rights Act 1996.

2. Reasonable ignorance of the existence, method or time limit for enforcing an unfair dismissal right can be an impediment to presentation. But where a claimant knows of the right to claim unfair dismissal, the tribunal must determine whether and to what extent it was reasonable to expect enquiries about how and within what period that right should be exercised.

3. The Employment Judge accepted that the claimant had not obtained advice and mistakenly believed that he had to exhaust the internal appeal. The Judge did not make findings explaining why that belief was reasonable, beyond describing it as understandable. In particular, the Judge did not consider whether it was reasonable to expect the claimant to use the internet, seek available advice, or obtain legal advice, especially after he had asserted that he had done so.

4. A pending internal appeal cannot, by itself, establish that timely presentation was not reasonably practicable. It is context only; the required inquiry remains what steps it was reasonably practicable for the claimant to take. The same omitted inquiry was material to the conclusion that the later presentation was within a further reasonable period.

5. The EAT could not make the necessary factual evaluation itself. The case was remitted to the Employment Tribunal for rehearing, with submissions to be heard on whether it should be constituted in the same way. The EAT added, obiter, that the broader just-and-equitable extension test under the Equality Act 2010 permits consideration of both parties’ positions and prejudice, but the Employment Judge had to apply the narrower statutory test then governing unfair dismissal.

• Employment Appeal Tribunal: allowed the employer’s appeal and remitted the limitation issue for rehearing.
• Employment Tribunal, London (South): Employment Judge Fowell, judgment dated 4 April 2019, held that the unfair dismissal complaint had been presented in time.