Jacqueline Cross v NHS Somerset Clinical Commissioning Group

For the purposes of section 111(2) of the Employment Rights Act 1996, a tribunal assessing whether it was reasonably practicable to present an unfair-dismissal complaint in time must identify the claimant’s actual mistaken belief and how it arose. It must then decide, on the evidence, whether that belief was reasonable in the claimant’s circumstances, including what the claimant knew or ought reasonably to have known.

The mere availability of internet research, former advisers or union representatives does not resolve that question. A tribunal must not rely on irrelevant considerations, impute knowledge without evidence, or criticise a claimant for failing to explain a belief where no fair opportunity to give that explanation was provided. The statutory time limit remains strict and is not enlarged by general fairness or equity.

The claimant resigned from employment and notified ACAS for early conciliation while pursuing an internal grievance. She genuinely believed, following a conversation with an ACAS officer, that she had taken the steps needed to protect a future tribunal claim and should await the grievance outcome. Her unfair-dismissal claim was presented after the applicable limitation date.

Employment Judge LeGrys held that it had been reasonably practicable to present the claim in time. The claimant appealed, contending that the Judge had wrongly assessed the reasonableness of her belief. The central issue was whether the Judge’s conclusion on reasonable practicability under section 111(2) of the Employment Rights Act 1996 was lawfully reached.

1. Appeal allowed. The Employment Judge’s conclusion that the claimant’s mistaken belief was unreasonable was vitiated by errors of fairness and reasoning.

2. The agreed finding was that, after speaking to the ACAS conciliation officer, the claimant believed she had done everything required to bring a tribunal claim in time pending the grievance outcome. A proper assessment required findings as to the content and origin of that belief, followed by an evidence-based evaluation of whether a reasonable person in her position would have recognised a need for further inquiry.

3. The Judge took irrelevant account of the absence of a reinstatement request in the grievance. The claimant was awaiting its outcome as a procedural step, not its substantive result. That feature could not assist in deciding whether her belief about the limitation position was reasonable.

4. It was unfair to treat the mistake as wholly the claimant’s own, or to find that she had supplied no explanation, when she had not been questioned about her conversation with ACAS or why she formed the belief. The available evidence indicated that the belief arose from that conversation.

5. There was no evidence that the claimant had received advice about time limits or the effect of section 207A of the Employment Rights Act 1996, or that she knew enough to identify an inconsistency requiring her to consult former solicitors, union representatives or internet sources. Their possible availability did not answer whether it was reasonable for her not to do so.

6. The established interpretation of section 111(2) remained unchanged. Time limits are strict and the exception must be applied to the evidence, rather than by general fairness or equity. The issue could reasonably be decided either way on a proper hearing. It was therefore remitted to a differently constituted tribunal.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the reasonable-practicability issue to a differently constituted tribunal: [2024] EAT 20.

• Employment Tribunal: Employment Judge LeGrys determined on 25 July 2022 that the unfair-dismissal complaint was time-barred; written reasons were provided on 15 August 2022.