We successfully appealed against an employment tribunal judgment which granted a claimant an extension of time to submit a claim for unfair dismissal and whistleblowing where the claim had been late because of an error on the ET1 form. The EAT has held that, where a claim is re-submitted by solicitors to correct an error, and this is done out of time, the reasonableness of the solicitors’ error must be assessed when deciding whether to allow an extension of time.

The facts

Ms Zhou instructed solicitors to lodge her claims of unfair dismissal and whistleblowing in the employment tribunal. To save costs, it was agreed that Ms Zhou would complete the ET1 form herself. In doing so, she failed to insert the ACAS Early Conciliation certificate number correctly. Her solicitors failed to spot the error before they submitted the claim with the employment tribunal on the last day of the limitation period. The employment tribunal rejected the claim because of the error. The solicitors re-submitted the claim correctly, but it was then outside of the 3-month limitation period.

In deciding whether to allow an extension, the employment tribunal must consider whether it was reasonably practical to have submitted the claim in time. In this case, both Ms Zhou and her solicitors believed that the claim had been properly lodged in time. The Claimant's belief arose from her confidence in her solicitors. The solicitors' belief arose because they failed to spot the error.

The EAT decided that the question that needed to be asked is whether Ms Zhou's solicitors had acted reasonably in failing to do so. Whilst the employment tribunal concluded that the solicitors were unquestionably at fault, the EAT found that this did not automatically mean that their conduct had been unreasonable. It was necessary to consider all the circumstances, which in this case included consideration of the fact that Ms Zhou had completed the form herself to save costs.

In summary:

  • If the solicitors' conduct in failing to submit the correct claim in time was reasonable, the employment tribunal was entitled to find that it was not reasonably practicable to lodge the re-submitted claim in time, such that time for submitting the claim should be extended and the claim should be allowed.
  • On the other hand, if the solicitors' conduct was unreasonable, Ms Zhou was bound by that and the employment tribunal should find that it was reasonably practicable for the claim to have been presented in time, such that the claim should be dismissed as being out of time.

The question of whether the solicitors had acted reasonably has been remitted to be decided by the same Employment Judge.

What does thihs mean for employers?

This case highlights the importance of complying with the strict requirements of the employment tribunal rules. It also provides clarification about the approach the employment tribunal will take when deciding whether or not it was reasonably practicable for a claimant to have submitted a claim in time. If the failure to do so arises from the conduct of the claimant's solicitors and that conduct was unreasonable, respondent employers will be able to challenge the ongoing pursuit of the claim.

North East London NHS Foundation Trust and Ms S M Zhou