The Governing Body Of Sherdes v. Mr B Davies - (13 Sep 2016)

Tribunal can consider a claim for unfair dismissal presented outside three month limit, if it is presented within such further period as tribunal considers reasonable

Limitation

Instant appeal by Sheredes School (the Respondent below) against a Decision of Employment Judge by which Claimant’s complaint of unfair dismissal to proceed was allowed under section 111(2)(b) of the Employment Rights Act 1996 notwithstanding that it was presented after expiry of the three month time limit provided by section 111(2)(a) (as extended by section 111(2A)). Time for presenting the claim was to expire on 25th October, 2015. On 08th October, 2015 the solicitors advised him to seek new solicitors in relation to the claim but gave no advice about the need to present a claim by 25th October, 2015. On 14th October, 2015 there was a Solicitors’ Regulatory Authority (“SRA”) intervention which prevented the solicitors from taking any action or communicating with clients thereafter. Claimant saw other solicitors on 5th November, 2015 and, with the assistance of his wife but without having obtained the file, presented his claim on 10th November, 2015.

Section 111(2)(b) provides that a Tribunal can consider a claim for unfair dismissal which is presented outside the three month limit provided by section 111(2)(a) if it is presented “… within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”

Judge’s reasoning, was in essence that Mr Davies and his wife were, quite reasonably, ignorant of the need to present a claim form by 25 October 2015; they had entrusted matters to a firm of solicitors and the solicitors were prevented from doing anything further by the Solicitors’ Regulatory Authority (“SRA”) intervention on 14 October 2015; that intervention was a “special reason” explaining the solicitors’ failure as being reasonable, so that it was not reasonably practicable for the claim form to be presented in time.

Failure to present claim therefore arose from “the fault of [the] solicitors … in not giving such information as they should reasonably in all the circumstances have given …” and did not arise from SRA intervention. Although, intervention may have provided a “special reason” explaining the solicitors’ failure to advise or present a claim after 14 October 2015 if there had been no conversation on 8 October 2015, plain fact is that there was such a conversation and that it pre-dated the intervention.

It was a clear error of law for the Judge to fail to consider what advice the solicitors ought to have given on 8 October 2015 and what would have happened if they had given it and that the appeal ought therefore to be allowed. It was reasonably practicable for Mr Davies to present his claim before 25 October 2015. Claim for unfair dismissal is out of time and that Tribunal has no jurisdiction to consider it.

Relevant : Wall’s Meat Co Ltd v Khan [1978] IRLR 499 CA Brandon LJ, Section 111(2)(b) of the Employment Rights Act 1996

Tags : UNFAIR DISMISSAL TIME EXTENSION