Cygnet Behavioural Health Limited v Britton

The Employment Appeal Tribunal allowed the employer's appeal and held that the Employment Tribunal's findings that it was "not reasonably practicable" for the claimant to present an unfair dismissal complaint in time, and that the claim was presented within a reasonable further period, were perverse. The EAT applied the statutory framework in section 111(2) and section 207A of the Employment Rights Act 1996 and the established test for perversity on appeal and concluded that, on the primary facts found by the ET, no reasonable tribunal could have reached the conclusion that the claimant could not have discovered the applicable time limits by 22 February 2020.

The ET's acceptance of the claimant's dyslexia and mental health difficulties did not, without more, make it not reasonably practicable for him to ascertain the time limits or to check for the ACAS early conciliation certificate. The EAT therefore substituted a finding that the ET lacked jurisdiction because the claim was presented outside the statutory time limits and dismissed the claim. The EAT also refused to admit the late GP letter as fresh evidence on appeal under the Ladd v Marshall test.

Background and parties: The respondent (Mr Britton) brought a complaint of unfair dismissal against his former employer, Cygnet, alleging automatic unfair dismissal because the reason or principal reason for dismissal was protected disclosures. The claimant had been dismissed while on probation on 24 October 2019 and referred to his regulator (the HCPC), which led to a lengthy fitness to practise investigation.

Procedural posture: The Employment Tribunal (Employment Judge Midgley) heard the matter on 13 October 2020 and issued written reasons on 29 October 2020, holding that it had jurisdiction because it was not reasonably practicable for the claimant to present his claim within the primary three-month period and that the subsequent 62-day delay was reasonable. The employer appealed to the EAT.

Nature of the claim / relief sought: The claimant sought to bring a complaint of unfair dismissal (automatic unfair dismissal alleged because of protected disclosures) and for the tribunal to hear the substantive claim.

Issues framed:

• Whether, under section 111(2) and section 207A of the Employment Rights Act 1996, it was not reasonably practicable for the claimant to present his claim before the expiry of the primary limitation period (expiry date 22 February 2020);
• Whether, if not reasonably practicable, the claim was presented within a reasonable further period thereafter (claim presented 29 April 2020);
• Whether the ET's findings were perverse such that the EAT should intervene; and
• Whether fresh evidence (a GP letter dated 15 October 2020) should be admitted on appeal.

Key facts and findings: The ET accepted that the claimant suffered lifelong dyslexia and situational anxiety/depression, prioritised the HCPC proceedings, contacted ACAS in mid-November 2019, commenced early conciliation (certificate issued 15 December 2019), and opened the email with the certificate in mid-February 2020. The ET found that dyslexia, mental health deterioration and focus on the regulator meant it was not reasonably practicable for him to present in time and that the further 62-day delay was reasonable.

EAT reasoning and decision: The EAT reviewed the strict statutory test for "not reasonably practicable" (section 111(2)) and the high standard for perversity review. It held that, although the ET could accept the claimant's testimony about dyslexia and mental health, the combination of primary facts (including the claimant's ability to appeal, obtain work, correspond at length with the regulator, move home, and ask ACAS about how to present a claim) made the ET's conclusion that he could not reasonably have discovered the time limit irrational. The EAT concluded the ET's findings on both the primary extension and the subsequent reasonable period were perverse and that, on the facts found, the only rational conclusion was that the claim was out of time. The EAT also held the GP letter did not satisfy the Ladd v Marshall test to admit fresh evidence and therefore did not alter the result.

Wider context: The EAT emphasised the strictness of the "not reasonably practicable" test in contrast to the more generous "just and equitable" approach in other statutory contexts.

Appeal allowed. The EAT held that, applying the statutory provisions in section 111(2) and section 207A of the Employment Rights Act 1996 and the correct legal test for perversity, the Employment Tribunal's conclusion that it was not reasonably practicable for the claimant to present his claim in time and that the further delay was reasonable was perverse on the primary facts found. The EAT substituted a finding that the claim was presented out of time and dismissed the claim. The EAT also declined to admit the late GP letter as fresh evidence under the Ladd v Marshall criteria.

Employment Tribunal (Bristol), Employment Judge Midgley, hearing 13 October 2020, written decision sent 29 October 2020 (ET held it had jurisdiction). Appeal to the Employment Appeal Tribunal heard 16 November 2021, judgment ([2022] EAT 108) allowing the employer's appeal.