An employee wishing to bring an unfair dismissal claim must do so within three months of their effective date of termination. Time limits for presenting claims to the Employment Tribunal (ET) are normally strictly enforced. If the deadline is missed, the Employment Rights Act 1996 states that the claim will only be accepted 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'.
A recent case (Royal Bank of Scotland plc v Theobald) looked at whether a delay was 'reasonably practicable' where the claimant had been given incorrect advice by the Citizens Advice Bureau (CAB).
Mr Theobald was employed by the Royal Bank of Scotland (RBS) as a financial adviser. On 11 November 2005 he was summarily dismissed for gross misconduct. He therefore had until midnight on 10 February 2006 to lodge a claim for unfair dismissal. The application was not however lodged until 23 February.
The explanation given for the lateness of the application was that Mr Theobald had consulted the CAB and was wrongly advised that he must wait for the internal appeal procedure to be completed before he could make his application to the ET.
On 9 February, Mr Theobald heard that his appeal was unsuccessful. On the same day he downloaded a claim form ET1 from the Internet and used this as a template. He then proceeded to obtain a form through the post, from his local Tribunal Office, and consulted with a number of relatives before lodging his claim.
The ET found that it was not reasonably practicable for the claim to have been made within the three-month time limit and that it was presented within a reasonable time after the time limit had expired. RBS appealed the decision.
RBS argued that the CAB should have been regarded as a 'skilled adviser'. The ET should have considered that the fact that Mr Theobald had consulted a skilled adviser showed that it was reasonably practicable for him to have presented his claim in time and there were no exceptional circumstances which prevented this. The bank also claimed that the ET had erred in law in providing no explanation as to why it judged it reasonable for the claim to have been presented 13 days after the expiry of the time limit.
As regards the incorrect advice given by the CAB, the Employment Appeal Tribunal (EAT) drew a distinction as to whether or not the adviser has responsibility for completing the claim form. The EAT was of the view that a claimant who has received erroneous advice from a skilled adviser, but who has retained responsibility for presenting the claim, may well be entitled to say that it was not reasonably practicable to present the claim during any period during which he was acting on that advice. However, the ET had erred in law by not asking whether it was feasible for Mr Theobald to have presented his claim on 9 or 10 February. The EAT judged that he could have submitted the claim electronically within the time limit. In the absence of any finding of fact that it would have been unreasonable to expect him to do this, the inevitable conclusion was that it would have been reasonable.
In addition, the ET had not been given a full explanation as to why the claim was delayed for so many days after the finding of the internal appeal effectively removed the erroneous barrier to submitting it. This made it impossible to conclude that it was presented within a reasonable time and the ET had erred in law in failing to provide adequate reasons for its decision that it had.
Says Dean Parnell, "There have been quite a few cases involving individuals acting on incorrect advice given by someone other than a qualified professional. Taking legal advice early in such proceedings is strongly recommended for employee and employer alike, especially as failure to adhere to the strict time limits involved can be fatal to one's case."
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