Cygnet Behavioural Health Ltd v G Britton

Under section 111(2) of the Employment Rights Act 1996, the extension for claims that could not reasonably practicably be presented in time is strict. A claimant who knows that a limitation period applies must take reasonable practical steps to discover it. Depression, dyslexia, competing regulatory proceedings and pressure of work do not, without more, establish that those steps were not reasonably practicable.

The tribunal must separately decide whether any further delay was reasonable. An appellate tribunal may set aside findings on those questions as perverse where, on unchallenged primary facts, they are not a permissible conclusion. If only one rational result remains, it may substitute that result rather than remit the case.

The claimant alleged that his dismissal was automatically unfair because it was for making protected disclosures. The primary time limit, as adjusted for ACAS early conciliation, expired on 22 February 2020. His ET1 was presented on 29 April 2020.

The Employment Tribunal held that it had jurisdiction. It found that the claimant's regulatory fitness-to-practise proceedings, mental health, and dyslexia made timely presentation not reasonably practicable, and that the ensuing 62-day delay was reasonable.

The employer appealed on perversity grounds. It did not challenge the Employment Tribunal's primary findings of fact or its general self-direction in law. The central issue was whether those findings could rationally support the statutory extension of time.

1. Appeal allowed. The Employment Tribunal's conclusions that timely presentation was not reasonably practicable and that the further delay was reasonable were perverse. The Employment Appeal Tribunal substituted the only rational conclusion on the findings: the claim was out of time and had to be dismissed.

2. The test in section 111(2) of the Employment Rights Act 1996 is materially stricter than a “just and equitable” extension. It is not enough that it was reasonable not to take a step which could practicably have been taken. The statutory test should not be given a liberal construction in favour of the employee.

3. The Employment Tribunal was entitled to accept, without medical evidence, that the claimant had depression and dyslexia. There is no rule requiring medical evidence in every such case. Those conditions did not, however, automatically establish that it was not reasonably practicable to present a claim or discover its time limit.

4. The claimant knew the factual basis of his claim and knew that a time limit existed. He had appealed his dismissal, contacted ACAS, completed early conciliation, worked in two posts, moved home, conducted extensive regulatory correspondence, discussed a tribunal claim, and asked ACAS how to bring it. In those circumstances, there was no rational explanation for treating him as unable to ask about, or otherwise ascertain, the limitation period or check for the anticipated ACAS certificate.

5. The further delay of over two months was also not reasonably justified. The Employment Tribunal had no clear evidence that the claimant only became able to deal with the tribunal claim after responding to the regulatory allegations. Prioritising those proceedings did not explain the failure to ascertain or comply with the time limit.

6. The proposed fresh GP evidence was unnecessary to the outcome and did not satisfy the third limb of the test in Ladd v Marshall. Remittal was inappropriate because the established facts admitted only one lawful outcome.

• Employment Appeal Tribunal: allowed the employer's appeal and substituted dismissal of the unfair dismissal claim as out of time.
• Employment Tribunal, Bristol: Employment Judge Midgley held that the Tribunal had jurisdiction because timely presentation was not reasonably practicable and the later presentation was within a reasonable period. Written reasons were sent on 29 October 2020.