Time’s up

Cambridge and Peterborough Foundation NHS Trust v Crouchman

Section 111(2)(b) of the 1996 Employment Rights Act allows tribunals to extend the usual three month time limit if it is satisfied that it was not “reasonably practicable” for the complaint to have been lodged on time. In Cambridge and Peterborough Foundation NHS Trust v Crouchman, the Employment Appeal Tribunal (EAT) said that ignorance of a crucial or fundamental fact could constitute such a circumstance if, on finding out about it, the claimant realised they did have grounds for presenting a claim.

Basic facts

Mr Crouchman, a psychiatric nurse for the Trust, was accused of inappropriate behaviour with a patient, involving five separate charges:

• sending sexually explicit texts to her
  making sexually explicit calls to her
  visiting her alone
  trying to kiss her when they were alone
  trying to persuade her to have a relationship with him.

He was summarily dismissed for gross misconduct on 21 February 2008. He appealed against the decision, but the hearing did not take place until the morning of 19 May. At about 1.15pm the chair of the panel made a statement which appeared to uphold the decision of the disciplinary panel on all 5 grounds.

Although Mr Crouchman was aware that he needed to submit a tribunal application by midnight on 21 May, he thought that an application would be pointless, given the appeal decision.

However, on 28 May he received the formal “appeal outcome letter” which revealed that the panel had not, in fact, endorsed all the findings of the original panel. Instead it had dismissed the first four charges (which he believed then undermined the fifth), and gave him hope that there was a point in submitting a tribunal application which he did that day.

Tribunal decision

At a pre-hearing review an employment judge decided to exercise his discretion under section 111(2)(b) because of the “crucial” letter from the appeal panel.

He accepted that “anyone listening to what [was said] would have concluded that the allegations against the claimant were accepted by the appeal body.” As Mr Crouchman had not been given the full, written reasons until 28 May, it had not been reasonably practicable for him to bring his claim until after the expiry of the three month time limit.

EAT decision

And the EAT agreed. Looking at a number of previous cases, it distilled the following principles that tribunals should apply to each ground or “head” of the unfair dismissal claim:

• Ignorance of a fact which is "crucial" or "fundamental" to a claim will in principle make it impractical for a claimant to present their claim
  A fact will, however, only be "crucial" or "fundamental" if, as a result of learning it, the claimant genuinely and reasonably changes their state of mind from one where they do not believe that they have grounds for the claim to one where they believe that they do
  Ignorance will not automatically mean that it is not “reasonably practicable" to present the claim unless the ignorance is reasonable and the change of belief in the light of the new knowledge is also reasonable
  It is not relevant whether the crucial fact is true. What is relevant is whether the “late-acquired information has genuinely and reasonably produced the change of belief”.
  
  In this case, the EAT decided that the “changed belief was not only genuine but reasonable and thus that the facts learned on 28th May were "fundamental". It follows that the Judge was entitled to find that it had not been reasonably practicable for him to present the heads of claim pleaded until the receipt of the appeal outcome letter. The appeal is accordingly dismissed”.