John Lewis Partnership v Charman
Mr Charman was summarily dismissed by John Lewis on 13 March 2010. He appealed and the appeal hearing took place on 24 May. On 28 June, he was sent a letter dismissing the appeal but, as he was abroad at the time, he did not find out about the dismissal until mid-July. On 21 July, Mr Charman presented a claim to the employment tribunal. The three-month time limit for presenting an unfair dismissal claim had expired on 12 June and the question arose as to whether or not the tribunal had jurisdiction to hear the claim.
The employment tribunal held that it had not been reasonably practicable for Mr Charman to present a claim before the determination of his appeal and that he had presented the claim within a reasonable period after the determination of the appeal. The tribunal found that it had jurisdiction to hear the claim. John Lewis appealed. The EAT upheld the tribunal’s decision. An out-of-time unfair dismissal claim can proceed only if:
- the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the three-month period; and
- the claim was presented within a further period that the tribunal considers reasonable.
The EAT said that the starting point is that, if an employee is reasonably ignorant of the time limit, it cannot be said to be reasonably practicable for him to comply with it. In this case, Mr Charman was ignorant of the time limit; the question is whether or not that ignorance was reasonable. That is a question of fact for the employment tribunal to determine. A claimant’s ignorance will not be reasonable if he or she ought reasonably to have made enquiries about how to bring a tribunal claim before the relevant time limit expired.
The employment judge’s finding that it was reasonable in the circumstances for Mr Charman to defer investigating the possibility of taking legal action until after the outcome of the appeal was not perverse and could not be interfered with. In the circumstances, the judge’s finding that it was not reasonably practicable for the claim to be submitted before 21 July was “somewhat on the generous side” in respect of the further delay after the appeal decision, but also not perverse.
It will be rare that an individual will be able to rely solely on awaiting the outcome of an internal process to justify a delay in submitting a tribunal claim. There is clear authority that it will generally be reasonably practicable for an employee to commence tribunal proceedings while an internal appeal is pending.
However, the question is ultimately whether or not the individual was aware of the time limit for bringing a claim and, if not, whether or not that lack of awareness is reasonable. Where the individual has taken advice, whether from a lawyer or a trade union, he or she will generally be treated as being aware of the time limit.
In cases where the individual has received no advice, the reasonableness of lack of knowledge of the time limit for bringing a claim will depend on the particular circumstances. Reasonable practicability is a question of fact, so it is important that respondents take time to challenge any submissions made by a claimant that he or she was unaware of the relevant time limits involved, as the employment tribunal’s decision in this regard will be difficult to appeal once determined.
Sandra Wallace, employment practice, DLA Piper
Practical guidance from XpertHR on tribunal time limits