Lowri Beck Services Ltd v Brophy

For unfair and wrongful dismissal claims, a reasonable factual misunderstanding about the communication and date of dismissal may make timely presentation not reasonably practicable. The tribunal must decide objectively whether that belief was reasonable in the claimant’s circumstances. A mistake of fact is distinct from ignorance of the law.

For discrimination claims, Equality Act 2010 section 123 confers a broad just-and-equitable discretion. A claimant need not establish a good reason for delay before time can be extended. The tribunal must take account of relevant factors and may properly give decisive weight to comparative prejudice.

The claimant, who had severe dyslexia, was dismissed for gross misconduct by telephone on 29 June 2017. A letter dated 4 July was received on 6 July. He reasonably relied on his brother to deal with employment matters. His brother believed, from the letter, that dismissal took effect only on 6 July and presented the claims on that basis.

The Exeter Employment Tribunal held that the effective date of termination was 29 June 2017, so the claims were late. It nevertheless extended time for unfair dismissal, wrongful dismissal and disability discrimination. The employer appealed, contending that the extensions were perverse and that the wrong legal tests had been applied.

1. Appeal dismissed. The Employment Tribunal applied the correct tests and its conclusions were open to it on the evidence.

2. For unfair and wrongful dismissal, the statutory test required the claimant to show that timely presentation was not reasonably practicable and, if so, that presentation occurred within a reasonable further period. The question was fact-sensitive. The Tribunal was entitled to find that the claimant reasonably entrusted matters to his brother and that the brother’s genuine belief about the dismissal date was objectively reasonable.

3. The employer’s letter could reasonably be regarded as unclear. It did not state that it merely confirmed the earlier telephone communication, although it referred to immediate effect from 29 June. The Tribunal’s conclusion that the brother had reasonably misread it was not perverse. The misunderstanding concerned the factual communication of dismissal, not the legal rule for identifying the effective date of termination. Further legal research would not necessarily have corrected that factual misreading.

4. For the disability discrimination claim, section 123(1)(b) of the Equality Act 2010 gave the Tribunal a wide discretion. It was not required to find a good explanation for delay as a precondition to extending time. In any event, the claimant had provided an explanation. The Tribunal could focus on comparative prejudice, particularly as the employer identified no prejudice beyond having to defend the claim.

5. The Judge noted, without deciding it, a possible unresolved jurisdictional question about whether presentation on 5 December was within a reasonable period after 5 November. That point had not been raised below or on appeal. It could be considered by the Tribunal at a later hearing if still material.

• Employment Appeal Tribunal: dismissed the employer’s appeal in [2019] UKEAT 0277_18_2503.
• Employment Tribunal, Exeter: extended time for the claimant’s unfair dismissal, wrongful dismissal and disability discrimination claims, subject to an unresolved particularisation issue concerning one aspect of the discrimination claim.