Claimants have to lodge a complaint of unfair dismissal within three months of being dismissed (extended by the early conciliation process), unless it is not reasonably practicable to do so. In Wray v Jewish Care, the Employment Appeal Tribunal (EAT) held that it was for the tribunal to decide based on the evidence before it whether it had been reasonably practicable for the claimant to present their complaint in time.
Basic facts
Mr Wray was dismissed with effect from 6 March 2017 for alleged gross misconduct. He asserted that his dismissal was unfair and that his former employer was in breach of contract.
Statutory early conciliation started on 24 April 2017 and Mr Wray’s EC certificate was issued on 7 June. He then went to a Citizens Advice Bureau on 10 June but was not given an appointment until 13 July when he was told by the advisor, Mr Lewis, that the time limit for lodging his claims had expired on 6 July (although it was subsequently established that the correct date was 18 July). The advisor agreed to represent him in any event and worked on his claim thereafter.
In early August, Mr Wray learned that the system of tribunal fees had been abolished and on 6 September his advisor lodged his claims on his behalf.
Tribunal decision
At a preliminary hearing to decide whether the claim should proceed, Mr Wray explained that the delay in presenting his claims arose partly because he had been unaware of the time limits and partly because ACAS had problems getting his former employer to cooperate. In addition he had been short of funds, but after he had learned about the abolition of the fee system, he had submitted the claim as soon as possible.
Rejecting his claim, the judge pointed out that ACAS had emailed Mr Wray on 27 April with a link to a booklet which clearly set out the time limits. With regard to the fees system, she held that he had not presented any evidence to substantiate his argument that he did not have the necessary funds to lodge his claims before it was abolished. The judge therefore concluded that it had been reasonably practicable for him to have done so within the time limit.
When it became apparent that the correct limitation date was 18 July, the judge was asked to reconsider her decision. However, she held that the later expiry date would not have affected the outcome.
Mr Wray appealed arguing that, because of his problems with literacy, it was not reasonably practicable for him to have presented his claim during the period from 10 June 2017 when he contacted the CAB to 13 July 2017 when he saw Mr Lewis. As for the delay thereafter, he reasoned that he should not be punished for having been given the wrong advice.
EAT decision
Rejecting the appeal, the EAT held that it was for the tribunal to decide based on the evidence before it whether it had been reasonably practicable for the claimant to present their complaint in time.
In this case there was a delay from 18 July to 6 September 2017. Mr Wray had learned in early August that the fees regime was no longer in place. He had given instructions to Mr Lewis on 13 July 2017 to represent him. He had not provided evidence of his means to the judge whereas his statement clearly referred to saving up for the tribunal fees as well as those of the lawyer. It was not therefore perverse or an error of law for the judge to have concluded that the claim was not presented within a reasonable further period.