R Thorpe v Sainsbury's Supermarket Limited

An appellate challenge based on perversity fails where there was evidence on which the Employment Tribunal could properly reach its conclusion. A factual error will not make the decision perverse unless it was material to the issue decided.

In assessing an application to extend time, the Tribunal was entitled to consider the claimant’s medical evidence alongside her demonstrated ability to engage with her employer and prepare an ET1. The relevant question was whether her condition prevented her from complying with the procedural requirements during the material period.

The claimant was dismissed on 7 June 2019. She presented an ET1 on 20 August 2019 alleging unfair dismissal, wages claims and discrimination, but did not provide an ACAS early-conciliation certificate number. The claim was rejected and the certificate was supplied on 11 November 2019.

The Employment Tribunal held that the claims were out of time. It refused an extension, finding that the claimant’s mental health did not prevent her from obtaining the required certificate or completing her claim correctly. The claimant appealed on the sole ground that those decisions were perverse, relying in particular on an error concerning the date of a hospitalisation.

1. Appeal dismissed. The Employment Appeal Tribunal held that there was no basis for characterising the Employment Tribunal’s refusal to extend time as perverse.

2. The Employment Tribunal had evidence capable of supporting its findings. It was entitled to consider the claimant’s written and oral evidence and the medical reports together with her ability, during the relevant period, to correspond with her employer about her dismissal and wages and to prepare an ET1 with family assistance.

3. Those matters entitled the Tribunal to find that, although the claimant had faced serious difficulties, her mental health did not prevent her from obtaining an ACAS early-conciliation certificate or completing the claim form correctly. It was also entitled to find that the subsequent delay after she was informed of the missing certificate was not reasonable, and that an extension for the discrimination claims was not just and equitable.

4. The Employment Judge had made an unfortunate factual error by treating a hospitalisation in April 2020 as having occurred in April 2019, and by misstating the timing of medication. The error was immaterial. The material period was June to November 2019, for which the Tribunal had the relevant evidence. The mistaken understanding may, if anything, have portrayed the claimant’s condition in June 2019 as more serious.

• Employment Appeal Tribunal: appeal dismissed: [2023] EAT 20.
• Employment Tribunal, Croydon: judgment sent on 26 September 2020. The Tribunal held the claims out of time and refused to extend time.