B King v Gemalto UK Limited

The Employment Appeal Tribunal considered an appeal from an Employment Tribunal decision refusing to extend time under section 111(2) of the Employment Rights Act 1996 for an unfair dismissal claim. The central legal principles were the statutory three-month limit (subject to extension where it was not reasonably practicable to bring the complaint in time), the burden on the claimant to show that it was not reasonably practicable to present the claim in time, and that reasonable practicability is primarily a matter of fact for the tribunal (Palmer v Southend on Sea Borough Council and related authorities).

The Employment Tribunal found that the claimant knew he had a right to bring a claim, knew the claim was time-limited, knew that he needed to contact ACAS and that time was important, and that he had the means to check the time limit. The tribunal concluded the substantial cause of the late presentation was the claimant's failure to follow the union's advice to keep an eye on ACAS and to contact them.

The EAT held that the tribunal's findings were open to it, that the tribunal had sufficiently considered the claimant's health, caring responsibilities and other circumstances, and that the reasons given were adequate. The appeal was dismissed.

Background and procedural posture:

• The claimant was dismissed on 8 August 2018 and lodged an employment tribunal claim after contacting ACAS on 13 November 2018. The Employment Tribunal (Employment Judge Gray) decided the complaint was presented out of time and that it was reasonably practicable to have presented the complaint within the statutory three-month period. The claimant appealed to the Employment Appeal Tribunal. A preliminary 3(10) hearing before HH Judge Tayler limited the grounds that could be pursued on appeal.

Nature of the application: The appeal concerned whether the Employment Tribunal erred in concluding it was reasonably practicable for the claimant to present an unfair dismissal complaint within the three-month limit in section 111(2) of the Employment Rights Act 1996 (with time for ACAS early conciliation).

Issues framed by the court:

• Whether the tribunal had an adequate evidential basis for finding the claimant knew there was a time limit and knew he should contact ACAS.
• Whether the tribunal properly assessed whether the claimant’s ignorance of the exact three-month period was reasonable or whether the claimant had taken reasonable steps to discover it.
• Whether the tribunal properly considered the cumulative impact of the claimant's health, caring responsibilities, loss of income, internal appeal and representation status on the ability to present in time.

Court’s reasoning:

• The EAT reiterated that reasonable practicability is ordinarily a factual question for the tribunal and that tribunals need not produce perfect legal draftsmanship but must give sufficient reasons.
• The tribunal’s findings that the claimant knew he had a right to bring a claim, that the claim was time-limited, that he knew he had to contact ACAS and that time was important were capable of being drawn from the evidence and from the claimant’s answers in cross-examination.
• The tribunal properly considered the evidence relating to the claimant’s health and caring responsibilities and was entitled to conclude that, on the facts, the claimant had the means (including internet access) to discover the time limit and had not been given incorrect advice; the primary cause of delay was the claimant’s failure to act on the union representative’s instruction to keep an eye on ACAS.
• The EAT concluded that the Employment Tribunal had given adequate reasons and reached a conclusion open to it; the appeal was dismissed.

The EAT noted the statutory framework (section 111(2) ERA 1996) and the established authorities on reasonable practicability and ignorance of rights, while observing that a different tribunal might have reached a different outcome, that does not amount to an error of law on which the EAT can interfere.

The appeal is dismissed. The Employment Appeal Tribunal held that the Employment Tribunal’s factual findings — that the claimant knew he had a right to bring a claim, knew the claim was time-limited, knew he needed to contact ACAS and that time was important, and that the substantial cause of delay was the claimant’s failure to act on his union’s advice — were open to the tribunal on the evidence, and that the tribunal had adequately considered the claimant's circumstances. Accordingly there was no error of law warranting intervention.

Appeal to the Employment Appeal Tribunal from an Employment Tribunal decision of Employment Judge Gray (written reasons sent 27 June 2019) refusing an extension of time for an unfair dismissal claim. The grounds were narrowed at a 3(10) hearing before HH Judge Tayler before the EAT hearing.