Wray v Jewish Care

For unfair-dismissal and employment-contract claims, the claimant bears the burden of showing precisely why timely presentation was not reasonably practicable. The assessment is fact-sensitive and includes both what the claimant knew and what they reasonably ought to have known from available information and advice.

Incorrect professional advice will ordinarily be attributed to the claimant. The mere existence of the former tribunal-fees regime does not itself establish reasonable impracticability. A claimant must show that the fee requirement actually prevented timely presentation in their particular circumstances. If reasonable impracticability is established, whether the further delay was reasonable is a separate evaluative question for the tribunal.

The claimant, a former chef employed by the respondent charity, brought claims for unfair dismissal and contractual notice pay following dismissal on 6 March 2017.

An Employment Tribunal dismissed the claims as out of time. On reconsideration, it corrected the ordinary expiry date, after the ACAS early-conciliation extension, from 6 July to 18 July 2017, but held that this did not affect the result.

The claimant appealed, relying on limited literacy, delay in obtaining advice, erroneous advice about the time limit, and the former £250 issue fee. The central issues were whether it was not reasonably practicable to present the claims by 18 July 2017 and, if so, whether presentation on 6 September 2017 was within a reasonable further period.

1. Appeal dismissed. The Employment Judge made no error of law and reached no perverse conclusion in holding that the claimant had not proved that timely presentation was not reasonably practicable.

2. The materially indistinguishable provisions of Employment Rights Act 1996, section 111(2)(b), and the Employment Tribunals (Extension of Jurisdiction) Order 1994, regulation 7, placed the burden on the claimant. He had to show precisely why he had not presented the claims in time. The enquiry depended on the particular circumstances, including both actual knowledge of the time limit and knowledge which he reasonably ought to have acquired.

3. The Employment Judge was entitled to find that the claimant had access to information and assistance. He had engaged with ACAS, whose email linked to material explaining time limits, and he obtained legal advice. His limited literacy did not demonstrate that he could not reasonably have become aware of the relevant limits.

4. The erroneous advice given on 13 July 2017 that the claim was already late did not assist. There was no evidence that this advice caused the earlier failure to present the claim. In any event, mistaken legal advice will generally be attributed to the claimant, unless the adviser’s error was itself reasonable, for example because the employer had misled the claimant or adviser about a material fact.

5. The unlawful former fees regime did not automatically make timely presentation impracticable. The claimant had to establish its actual effect upon him. The Employment Judge was entitled to find that there was no sufficient evidence that he lacked funds even for the issue fee; his statement referred also to saving for legal fees and other costs.

6. Further, even if reasonable impracticability had been established, the Employment Judge was entitled to conclude that the delay from 18 July to 6 September 2017 was not a reasonable further period.

• Employment Appeal Tribunal: appeal dismissed: [2019] UKEAT 0193_18_1704.
• Employment Tribunal: claims for unfair dismissal and breach of contract dismissed as out of time. On reconsideration, the Tribunal corrected the expiry date to 18 July 2017 but maintained the dismissal.