Appeal tribunal decided regulatory intervention did not justify an extension
The Employment Appeal Tribunal (EAT) recently had to decide whether it was reasonably practicable for a claimant to have presented his claim in time when his solicitor was prevented from communicating with him because of the involvement of the Solicitor’s Regulation Authority (SRA).
The case, Governing Body of Sheredes School v Davies, concerned the dismissal of a school caretaker. Davies was dismissed on 12 June 2015, and instructed solicitors, Blavo and Co, regarding a potential unfair dismissal tribunal claim. The solicitors began the Acas early conciliation process on 10 September, and concluded it on 25 September, meaning Davies’ claim should have been presented to the employment tribunal by 25 October.
On 8 October Davies contacted the solicitors’ firm and was advised he should seek alternative representation. No information was provided at this time regarding any time limits. Davies then met with his new solicitors on 5 November, heard for the first time about time limits, and was advised urgently to submit his claim, which was subsequently presented on 10 November.
In the interim, his original solicitors were closed down by the SRA on 14 October, case papers were removed, and the firm was prevented from communicating with its clients.
The employment judge accepted that Davies had believed that tribunal proceedings had started with the commencement of the Acas early conciliation process and that he need do nothing further to progress his claim. He was unaware of the 25 October deadline and had entrusted his claim to his solicitors who were then unable to present the claim as a result of the SRA intervention. The judge found that it was not reasonably practicable for the claim to have been presented in time and that the SRA intervention amounted to a special reason for extending the time limit for the claim. The employer appealed.
The EAT allowed the appeal and held that the employment judge had failed to consider whether the solicitors ought to have provided advice regarding time limits on 8 October and what would have happened if they had. The EAT held that, had the advice been given, it would have been reasonably practicable for Davies to have presented his claim in time, regardless of the SRA’s actions.
The failure to present the claim did not stem from the regulatory intervention but was a result of the solicitors’ firm not having provided all of the information it might reasonably have done in the conversation on 8 October. The solicitors should have advised Davies of the date for presenting his claim before the SRA intervention took place. Had this happened, the claim could have been submitted in time and so the intervention itself did not amount to a special reason that would allow the time limit to be extended.
The claim was out of time and the employment tribunal had no jurisdiction to consider it. The EAT noted, however, that the SRA involvement could have justified extending the time limit following the firm’s closure on 14 October if there had been no conversation on 8 October.
It remains to be seen whether or not an intervention by the SRA may create special circumstances for an extension to a tribunal claim time limit but the EAT in this instance has indicated this might be a possibility in certain circumstances.
Although the circumstances of this particular case are somewhat unusual, it highlights the importance of ensuring that advisers regularly discuss time limits with their clients, to minimise the risk of a claimant missing the relevant deadlines. The judge in the case implied that Davies may well have a claim against his solicitors – a justification, perhaps, for what seems like a very harsh decision.
Story via – http://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2016/09/27/employee-s-claim-ruled-out-of-time-following-solicitors-closure.aspx