Stratford On Avon District Council v Hughes

For the extension of time for an unfair-dismissal complaint, the tribunal must ask whether it was reasonably practicable for the claimant to present the complaint by the applicable limitation date. Where an early-conciliation certificate is required, the inquiry includes whether it was reasonably practicable for the claimant to obtain the certificate in time. It is insufficient to decide only that the claimant behaved reasonably in waiting before chasing the certificate, or that a claim could not have been lodged without it.

The standard is more demanding than reasonable conduct but does not require physical impossibility. Relevant matters include the substantial cause of delay and any substantial fault by the claimant.

The claimant, a solicitor employed by the Council, was dismissed on 29 March 2019 and alleged unfair dismissal. He began ACAS early conciliation on 25 June 2019. ACAS emailed a certificate on 2 August 2019, but it did not reach him. The extended limitation period expired on 2 September 2019.

After chasing ACAS on 3 September, the claimant received a copy of the certificate on 4 September and presented his claim on 5 September. Employment Judge Meichen held that the claim was late but that it had not been reasonably practicable to present it in time under section 111(2)(b) of the Employment Rights Act 1996. The Council appealed. The central issue was whether the Employment Judge had applied the correct reasonable-practicability inquiry.

1. Appeal allowed and matter remitted. The Employment Judge asked the wrong question when deciding whether to extend time for the unfair-dismissal complaint.

2. Section 111(2) of the Employment Rights Act 1996, read with section 207B(4), required the reasonable-practicability issue to be assessed at the extended expiry date, 2 September 2019. The claim could not be lodged without the early-conciliation certificate, but that fact did not itself answer the statutory question.

3. The necessary inquiry was whether, in all the circumstances, it would have been reasonably practicable for the claimant to obtain the certificate before 2 September and thereby commence proceedings in time. The Employment Judge instead treated the claimant's lack of a certificate as determinative and considered whether he had behaved reasonably in waiting until 3 September before chasing ACAS. Those were insufficient findings.

4. Applying the approach in Palmer v Southend Council, [1984] ICR 372, reasonable practicability lies between what is reasonable and what is physically possible. It imposes a heavier standard than merely behaving reasonably. The claimant's circumstances, understanding and conduct could still permit a properly directed tribunal to find that timely presentation was not reasonably practicable.

5. The case was remitted to the Employment Tribunal to decide that issue on the existing findings, applying the correct test. The EAT did not determine whether a different Employment Judge should hear it or whether further evidence should be received.

• Employment Appeal Tribunal: allowed the Council's appeal and remitted the reasonable-practicability issue for reconsideration.

• Employment Tribunal, Birmingham: Employment Judge Meichen, in a decision sent on 20 February 2020, held the unfair-dismissal complaint late but extended time under section 111(2)(b) of the Employment Rights Act 1996.