In deciding whether to allow an unfair dismissal claim to be filed late, a tribunal must consider not only what the employee knew but ‘what knowledge the employee should have had had he or she acted reasonably in all the circumstances’.
In Northumberland County Council and others v Thompson the employee was dismissed and, as a result, suffered from serious depression which lasted for the whole of the primary 3 month period during which she should have brought any unfair dismissal claim. Indeed her doctor advised her against considering a claim as it would be bad for her health.
She then contacted her trade union and was advised that her next step should be to use the employer’s internal grievance procedure.
She worked at a school and, because of intervening school holidays, it took months for the process to be completed. Her grievance was not upheld. She then filed an unfair dismissal claim - 11 months or so after her dismissal.
Applying the test set out in s.111 Employment Rights Act, the tribunal allowed her claim to proceed, deciding firstly that it had not been 'reasonably practicable' for her to bring a claim in time because she had been ill. The next point for the tribunal to decide was whether she had brought her claim ‘within such further period [after the end of the three month period] as the tribunal considers reasonable’. The tribunal considered that she had been led down a wrong path by her advisers and the employer and ordered that time be extended so that her claim could proceed.
The EAT has allowed the employer's appeal and the case has been remitted for re-hearing.
The employer had done nothing to mislead her and the EAT said that the tribunal had failed to establish when she first became aware of the three-month time limit for bringing a claim. It should have done so and should also have considered when she first should have known of the time limit, had she acted reasonably in all the circumstances.
Point to note:
- Where wrong advice is given, as a result of which an unfair dismissal claim is filed late and could be time-barred, the tribunal will usually strike out the claim but the claimant’s remedy will be to make a negligence claim against his or her advisor for depriving them of the chance of making the tribunal claim.