Jacqueline Cross v NHS Somerset Clinical Commissioning Group

The Employment Appeal Tribunal allowed the claimant's appeal against an Employment Judge's finding that her tribunal claim was time-barred. The central legal issue was the application of section 111(2) Employment Rights Act 1996: whether it was "not reasonably practicable" for the claimant to present her unfair dismissal complaint within the primary three-month period having relied on early conciliation with ACAS. The Employment Judge had found that the claimant genuinely but mistakenly believed, following an ACAS telephone contact, that she need not issue a claim until after a grievance outcome; the EAT accepted the finding of a genuine mistake but held that the Judge had erred in law and in procedural fairness in assessing whether that belief was reasonable.

The EAT identified specific errors: (i) failure to make clear findings about the content and origin of the claimant's mistaken belief and to explore the ACAS conversation; (ii) taking irrelevant matters into account (notably the absence of a reinstatement request in the grievance); and (iii) unfairly criticising the claimant for not giving explanations she had not been asked to give. The matter was remitted to a differently constituted tribunal for reconsideration under section 111(2).

Background and parties: The claimant, a nurse, resigned and alleged constructive/unfair dismissal and detriments linked to protected disclosures. She contacted ACAS for early conciliation in July 2021 and received an early conciliation certificate in August 2021. She received a grievance outcome from her former employer on 5 November 2021 and issued an ET1 on 10 November 2021. The respondent argued jurisdiction was lacking because the unfair dismissal claim was out of time.

Nature of the application: This was an appeal from an Employment Judge's determination (decision dated 25 July 2022; written reasons provided 15 August 2022) that the claimant's unfair dismissal complaint was time-barred because her mistaken belief about time limits was not a reasonable one for the purpose of section 111(2) Employment Rights Act 1996. The claimant appealed that conclusion to the Employment Appeal Tribunal.

Issues framed:

• What was the precise nature and origin of the claimant's mistaken belief about time limits after contact with ACAS?
• Was that mistaken belief a reasonable one so that it was not reasonably practicable for the claimant to present her complaint within the three-month period under section 111(2)?
• Did the Employment Judge make any legal or procedural errors in assessing reasonableness?

Reasoning and disposition: The EAT accepted the Employment Judge's factual findings that the claimant genuinely believed notifying ACAS had protected her position and that she acted promptly after the relevant ACAS contact. However, the EAT concluded the Judge erred in law and procedurally by failing to make clear findings as to how the claimant's mistaken belief arose and by taking into account irrelevant considerations (for example the absence of a reinstatement request in the grievance) and imputing knowledge to the claimant from prior legal contact without evidence. The Judge also criticised the claimant for failing to explain the content of her ACAS conversation when she had not been asked about it. Those defects prevented a fair assessment of whether the claimant's ignorance of the time limit was reasonable. The appeal was allowed and the matter remitted to a differently constituted tribunal to rehear the section 111(2) question.

Wider context: The judgment reaffirmed established principles on section 111(2) and the need for fact-sensitive inquiries into reasonable practicability, and rejected any suggestion that recent commentary has altered those principles.

Appeal allowed. The Employment Judge erred in law and in procedural fairness in assessing whether the claimant's genuine mistaken belief about time limits was reasonable for the purposes of section 111(2) Employment Rights Act 1996. The question of reasonable practicability is remitted to a differently constituted tribunal for reconsideration.

Appeal from an Employment Judge's decision (Employment Judge LeGrys, determination dated 25 July 2022; written reasons provided 15 August 2022 and sent to the parties 26 August 2022). Appeal heard in the Employment Appeal Tribunal resulting in [2024] EAT 20 (this judgment).