Pora v Cape Industrial Services Ltd (Extension of time : reasonably practicable)

For an unfair-dismissal complaint under section 111 of the Employment Rights Act 1996, it is reasonably practicable to present the claim in time where the claimant knows of the claim, instructs specialist advisers within time and authorises them to act. Their failure to present the claim in time does not engage the statutory extension.

The question is one of fact. An appellate court will not interfere absent perversity or legal error. An immaterial and questionable observation by a tribunal does not vitiate its decision where its actual finding and basis for decision were correct.

The claimant was dismissed on 12 May 2017. He sought advice promptly and placed his prospective unfair-dismissal and race-discrimination claims with Merseyside Employment Law. He was repeatedly assured that the matter was in hand, but no unfair-dismissal claim was lodged within the three-month limitation period.

An Employment Judge held that the unfair-dismissal complaint, presented on 23 March 2018, was out of time and dismissed it for want of jurisdiction. The Judge dismissed race-discrimination allegations concerning earlier events as out of time, but directed the discrimination complaint based on the dismissal to a full hearing on whether it was just and equitable to extend time.

The claimant appealed only the unfair-dismissal ruling. The central issue was whether it had been reasonably practicable for him to present that complaint in time despite his advisers’ failure.

1. Appeal dismissed. The Employment Judge did not err in concluding that it was reasonably practicable for the claimant to present his unfair-dismissal complaint in time.

2. Under section 111 of the Employment Rights Act 1996, the reasonably-practicable question is one of fact. The Employment Appeal Tribunal could interfere only if the determination were perverse or involved an error of law.

3. The evidence established that, within the limitation period, the claimant knew he had a claim, sought appropriate specialist advice, authorised solicitors to pursue the matter, and relied on assurances that his case was proceeding. On those facts, the failure to lodge the claim in time was attributable to the advisers. Applying [1973] IRLR 379 and [2005] IRLR 562, an adviser’s fault in those circumstances defeats an assertion that timely presentation was not reasonably practicable.

4. The Employment Judge’s observation that the claimant might otherwise have sought assistance from another adviser was not a finding of fact and was questionable. It did not form the basis of the decision. The operative finding was that the claimant had relied on Merseyside Employment Law to present his claim, which was sufficient to support the conclusion.

5. The different treatment of the discrimination complaint did not assist the claimant. It resulted from the distinct statutory just-and-equitable extension applicable to discrimination claims, rather than the more limited extension under section 111.

• Employment Appeal Tribunal: dismissed the claimant’s appeal and upheld the ruling that the unfair-dismissal complaint was out of time.
• Employment Tribunal: by a judgment with reasons sent on 24 July 2018, dismissed the unfair-dismissal complaint for want of jurisdiction. It also dismissed race-discrimination allegations concerning events up to 2 June 2016, while directing the dismissal-based discrimination complaint to a full hearing on a just-and-equitable extension of time.