B King v Gemalto UK Limited

Whether timely presentation was reasonably practicable is ordinarily a factual question for the Employment Tribunal. A claimant who knew of the right to claim, knew that action was time-sensitive, and had means to ascertain the applicable limit may not establish that timely presentation was impracticable merely because a union did not give the precise limit or send reminders.

The Tribunal must consider the substantial cause of delay and the claimant’s circumstances in the round. It need not address every item of evidence separately if its reasons, read fairly as a whole, disclose findings capable of supporting its conclusion.

The claimant was summarily dismissed after long employment and presented his Employment Tribunal claim after the primary limitation period had expired. He had contacted ACAS on 13 November 2018.

The Employment Tribunal held that timely presentation had been reasonably practicable. It found that the claimant knew he could bring a tribunal claim, had been told to contact ACAS, understood that time mattered, had access to the internet, and was not medically impaired so as to prevent compliance.

On appeal, the claimant challenged the finding concerning his knowledge of the time limit, the treatment of his lack of precise union advice, and the adequacy of the Tribunal’s consideration of his health, caring responsibilities, internal appeal and lack of representation when the claim was due.

1. Appeal dismissed. The Employment Tribunal’s mistaken reference to the claimant knowing the precise time limit had been corrected to a finding that he knew there was a time limit. That was a permissible correction and did not disclose an error of law.

2. The claimant bore the burden of showing that presentation within the statutory period was not reasonably practicable under section 111(2) of the Employment Rights Act 1996. The Tribunal was entitled to find that he knew he had a right to claim, needed to contact ACAS, knew that the right was time-limited, and knew time was important.

3. The material cause of the delay was the claimant’s assertion that his union had not supplied the exact period or reminders. This was not a case of incorrect advice. The advice to keep watch on ACAS and to contact it was sound. In the circumstances, the absence of precise or complete advice did not make compliance impracticable where the claimant had ready means of discovering the limit and did not act on the advice received.

4. The judge was not required, under the overriding objective in the Employment Tribunals Rules of Procedure 2013, to investigate matters which the represented claimant had not advanced. The Tribunal had sufficiently considered the claimant’s health, his wife’s care, financial pressures and internal appeal. It was entitled to conclude that presentation was feasible, particularly as he promptly pursued an internal appeal and presented his claim once he learned of the limit.

5. The reasons, although requiring findings to be drawn from several parts of the decision, were adequate when read as a whole. The conclusion was open to the Tribunal.

• Employment Appeal Tribunal: appeal dismissed in [2022] EAT 29.
• Employment Tribunal: Employment Judge Gray’s written reasons, sent on 27 June 2019, held that it had been reasonably practicable to present the claim within time.