Incorrect advice

The law says that claimants have to lodge their claim within three months from the date of dismissal, unless it was not reasonably practicable for them to do so. In DHL Supply Chain v Fazackerley, the Employment Appeal Tribunal (EAT) held that, having been given incorrect advice by Acas, it was not reasonably practicable for Mr Fazackerley to bring his claim within the time limit.

Basic facts

After being dismissed by DHL Supply Chain for gross misconduct effective from 15 March 2017, Mr Fazackerley appealed the decision. About four days later he contacted the Acas helpline and was told that, before lodging tribunal proceedings, he should exhaust the internal appeal process. He was not told that he needed to obtain an early conciliation certificate, nor was he told that there was a three-month deadline for lodging a tribunal claim.

Through no fault of either party, the appeal hearing did not take place until 22 June. At the end of the hearing, Mr Fazackerley was told that his appeal had not been successful. He then took advice and lodged a tribunal claim on 19 July but was told that it was out of time.

Tribunal decision

While the advice given by Acas might made sense, the tribunal held that it was incorrect because an ongoing appeal procedure does not constitute, in itself, a good enough reason for a tribunal to find that it was not reasonably practicable for a claimant to lodge their claim within the statutory time period.

Had Mr Fazackerley not asked for advice and just waited for the appeal process to come to an end, the judge said that he would not therefore have found in his favour, but given that he did ask, it was reasonable for him to accept the advice given to him by Acas and to proceed on that basis.

The employer appealed, arguing firstly that it had been incumbent on Mr Fazackerley to ask Acas about how to lodge a claim and to make further inquiries about time limits; secondly that the advice given by Acas was not, of itself, incorrect; and thirdly that it was an error of law for the tribunal to decide that it was not reasonably practicable for Mr Fazackerley to lodge the claim in time.

EAT decision

The EAT, however, disagreed on all three counts. Firstly, it held that the tribunal judge had asked Mr Fazackerley about other inquiries he had made and, having done that, it was for the judge to decide “the matter in all the circumstances”.

Secondly, although the advice given by Acas might not have been erroneous in the sense that most appeals against dismissal are dealt with speedily, nevertheless as an unqualified statement, it most certainly was wrong. The judge was therefore entitled to take the view that the Acas advice, albeit limited in scope, was erroneous.

Thirdly, it held that there was no error of law in holding that, as a result of the Acas advice, it was not reasonably practicable for Mr Fazackerley to bring his claim within the primary time limit. Once the advice had been given, he simply did not take matters further. Although a different judge might have taken a different view, this decision was not perverse, as “perversity engages a high hurdle, which has not nearly been reached in this case”.

The EAT also pointed out, however, that had Mr Fazackerley engaged a firm of solicitors and failed to meet the time limit because of their negligence, then that advisor would have been held to be at fault. In those circumstances, Mr Fazackerley would not therefore have succeeded in arguing that it was not reasonably practicable for him to lodge his complaint within time.