B.L.I.S.S Residential Care Ltd v Teresa Eileen Fellows

Where an employee instructs a skilled legal adviser, the adviser’s unreasonable ignorance or mistake is attributed to the employee when deciding whether it was reasonably practicable to present an unfair-dismissal complaint within the primary time limit.

A solicitor acting in Employment Tribunal proceedings must know, or check, the applicable time limit and the mandatory means of presenting a claim. The fact that the solicitor is newly qualified, is handling a first Tribunal claim, or is working during pandemic-related disruption does not make fundamental errors about those matters reasonable. A claim cannot obtain an extended time limit where it could readily have been submitted online within the primary period.

The claimant was dismissed and instructed solicitors to bring an unfair-dismissal claim. Her solicitor miscalculated the time limit and sent the claim by post to an office which was not a permitted means of presentation under the Presidential Practice Direction.

On being told on the final day of the primary time limit that the claim had not been properly presented, the solicitor sent it again by post rather than submitting it online. The claim was received two days late. The Employment Tribunal held that presentation within time had not been reasonably practicable and extended time.

The employer appealed. The central issue was whether the solicitor’s errors meant that it was not reasonably practicable to present the claim within the primary time limit.

1. Appeal allowed. The Employment Tribunal erred in holding that timely presentation was not reasonably practicable. The EAT substituted a judgment dismissing the unfair-dismissal claim as out of time.

2. Section 111(2) of the Employment Rights Act 1996 requires a complaint to be presented within the primary time limit unless the Tribunal is satisfied that timely presentation was not reasonably practicable. Under Dedman v British Building & Engineering Appliances Ltd [1974] ICR 53, as summarised in Lowri Beck Services Ltd v Brophy [2019] EWCA Civ 2490, an employee is fixed with an instructed skilled adviser’s unreasonable ignorance or mistake.

3. Presentation had to comply with the Presidential Practice Direction. Rule 8 of the Employment Tribunal Rules 2013 made that requirement mandatory. The Tribunal was wrong to suggest that the Direction was non-binding.

4. The solicitor made three fundamental errors: miscalculating the primary time limit, using an impermissible postal address, and then failing to resubmit online after receiving notice that the original claim was invalid. On receipt of that notice, she should have checked both the time limit and the permitted methods of presentation. Nothing prevented online submission on that day.

5. Being newly qualified and handling a first Employment Tribunal claim did not make those errors reasonable. Nor did pandemic conditions prevent access to the readily available information. It was therefore reasonably practicable to present the claim within the primary time limit.

• Employment Appeal Tribunal: allowed the employer’s appeal and substituted a judgment dismissing the claim as out of time.

• Employment Tribunal: Employment Judge Rayner held that timely presentation was not reasonably practicable and that the claim had been presented within a reasonable extended period.