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Beasley v. National Grid


Court of Appeal

In the circumstances an employment tribunal had been right to hold that it had no jurisdiction to hear a complaint of unfair dismissal presented 88 seconds outside the statutory time limit.


The appellant (B) applied for permission to appeal against a decision of the Employment Appeal Tribunal that the employment tribunal had been right to hold that it had no jurisdiction to hear his complaint of unfair dismissal against the respondent (N) because it had been presented out of time. The claim had to be presented to the tribunal at midnight on Saturday May 6, 2006, but B had presented it 88 seconds late. He had initially been advised, incorrectly, by his solicitor that were he to lodge a grievance the time limit would be extended by a further three months. However, the day before the expiry of the time limit he took advice from the tribunal and discovered that that was not the case. That evening he contacted his solicitor, who told him to submit the ET1 electronically that day. In fact, B completed the ET1 the following day and attempted to submit it by email shortly before midnight. However, because he had wrongly transcribed the email address, the form was not delivered. He checked the address, sent a test message and, at midnight, sent the ET1. It was not, however, received by the tribunal for another 88 seconds, taking him outside the time limit. B submitted that in considering whether it was reasonably practicable for the complaint to have been presented within the time limit, the tribunal failed to take account of material considerations, or, if it did, its reasoning was defective because it did not show that it had done so.

HELD: The Employment Rights Act 1996 s.111(2) imposed a harsh regime. Either a complaint was in time or it was not and there was no grey area for complaints that were only a little out of time. Complaints had to be presented within the time limit unless the complainant could show that it was not reasonably practicable to do so. What was reasonably practicable was pre-eminently a question of fact for the tribunal and it was seldom that an appeal would lie from such a decision. Moreover, if an application was left until the last minute, then the breakdown or failure of a piece of office equipment was a risk that had to be taken into account by the person making the application, Fishley v Working Men's College Unreported October 28, 2004 EAT applied. In B's case the tribunal took into account all the considerations relied on and, whilst its reasons could have been fuller, they contained sufficient material to enable B to know why he had lost. A decision on jurisdiction was a relatively straightforward matter and one could expect reasons that were generally much more brief than those to be given at the end of a full hearing. B's proposed appeal had no reasonable prospects of success.

Application refused

For the appellant: In person
For the respondent: Deshpal Panesar.

[2008] EWCA Civ 742

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