Hello and welcome back to your weekly case law update. Last week we looked at constructive dismissal and pay cuts. This week we are looking at a procedural case about bringing claims out of time.
A few weeks ago, we covered a case about limitation dates and ACAS Early Conciliation. Not only do prospective Claimants need to obtain an EC Certificate from ACAS, many often use ACAS as an advice line because it is free. However, the advice given is not by a solicitor and conciliators can vary in experience.
Section 111 of the Employment Rights Act 1996 states that all claims should be brought within the three month limitation period. Nevertheless, a judge can allow a claim to be brought after the limitation date if it is found that it was not reasonably practicable for the Claimant to bring a claim before the limitation date. An employee would still have to bring a claim within a reasonable time thereafter. An extreme example would be if the Claimant had been in a three month coma after being dismissed.
The question this week is:
Can a claim that has been brought out of time be allowed if the reason for delay was due to erroneous ACAS advice?
Mr Fazackerley, the Claimant, was dismissed by DHL, the Respondent, on 15th March 2017. To bring an Employment Tribunal claim, he would have to have initiated ACAS Early Conciliation before 14th June 2017, his limitation date (see table in previous case if unsure of how EC and limitation interact).
After his dismissal the Claimant contacted ACAS who advised him that he should exhaust the internal appeal processes before beginning Early Conciliation or Employment Tribunal proceedings. ACAS did not tell the Claimant about the limitation deadline and he did not take any further advice.
The Claimant appealed but the appeal did not conclude until 22nd June 2017, after his limitation date. The Claimant then lodged a claim in July and the Respondent applied to have it struck out due to the claim being brought after the limitation date.
The ET allowed the claim to proceed because the Claimant had been advised by ACAS to wait until after the appeal process. The advice given by ACAS is usually sound advice, however, in this case, the appeal was slow to conclude and the Claimant had not been informed of the limitation deadline. Therefore, it was not reasonably practicable to bring the claim in time.
The Respondent appealed and the EAT dismissed the appeal. It held that the ET had made the correct decision as the Claimant had not been advised by a trained solicitor but a free governmental agency. Once the Claimant had realised his rights he soon lodged a claim within a reasonable time.
The takeaway point:
Yes, because the Claimant had been advised by ACAS to exhaust the appeal process – which overran – it was not reasonably practicable for him to lodge a claim in time. Had a solicitor advised him, or, had the Claimant simply decided to wait without seeking advice, then the claim could have been issued in time but for solicitor negligence/claimant ignorance.
As a side note, many employers take a deliberate leisurely pace when hearing appeals to time out the employee. Often it is successful, but in facts such as these, timing out the employee will not always work.