Dr Ashcroft v. Haberdashers Aske’s Boys School
Employment Appeal Tribunal
The Employment Act 2002 (Dispute Resolution) Regulations 2004 reg.15(2) was plainly predicated on the assumption that the claimant would not have to present a claim to the employment tribunal before the expiry of an internal appeal.
The appellant (X) appealed against the decision of the employment tribunal to dismiss his claim for unfair dismissal against the respondent (H). X had issued proceedings some five weeks after the relevant three-month time limit had expired. He had pursued an internal appeal against his dismissal for gross misconduct, but he was not informed that his appeal had been unsuccessful until six hours before the deadline for issuing proceedings expired. X had been assisted and advised by someone who he thought was a qualified solicitor but who, it later transpired, merely had a law degree. The tribunal held that X's claim had been presented out of time and that it had been reasonably practicable for him to present it in time. The tribunal found that it could not be said to have been not reasonably practicable to bring the claim in time simply because X was instructing a solicitor, and that the existence of the internal appeal did not amount to justification from the point of view of reasonable practicability. X argued that (1) had the tribunal known that his adviser was not a solicitor, it would not have made the findings that it had; (2) having regard to the Employment Act 2002 (Dispute Resolution) Regulations 2004 reg.15(2), the tribunal had been wrong to hold that it had been reasonably practicable for him to present his claim in time.
HELD: (1) Even if the tribunal had known that X's adviser was not a solicitor, there would have been no difference to the result. The authorities concerning the proposition that negligence or delay by an adviser should be ascribed to the claimant were not confined to cases where the advice had been given by a solicitor but extended to cases where the claimant had any "adviser", Dedman v British Building & Engineering Appliances (1974) 1 WLR 171 CA (Civ Div), Riley v Tesco Stores Ltd (1980) ICR 323 CA (Civ Div), London International College v Sen (1993) IRLR 333 CA (Civ Div) and Royal Bank of Scotland Plc v Theobald Unreported January 10, 2007 EAT considered. (2) The purpose of the 2004 Regulations was to encourage dispute resolution. Regulation 15(2) was plainly predicated on the assumption that the claimant would not have to present a claim to the tribunal before the expiry of the appeal period. That was its purpose and its effect. It in effect repealed the authority of Palmer v Southend on Sea BC (1984) 1 WLR 1129 CA (Civ Div), Palmer considered. The tribunal should therefore have concluded that it was not reasonably practicable for X to present his claim before the expiry of the time limit. The case would be remitted to the tribunal.
(2008) IRLR 375 : (2008) ICR 613