Misleading information

Northamptonshire County Council v Entwhistle

The law says that anyone wanting to bring a claim of unfair dismissal must do so within three months of the effective date of termination, unless it is not “reasonably practicable” to do so. In Northamptonshire County Council v Entwhistle, the Employment Appeal Tribunal (EAT) said that tribunals can only extend the time if the claimant’s “skilled advisor” got the date wrong because of misleading information from the employer.

Basic facts

Mr Entwhistle was dismissed for gross misconduct on 13 November 2008. He then appealed against that decision and was told orally on 20 March 2009 that the decision to dismiss him had been upheld.

As the statutory dispute regulations still applied, he was automatically entitled to an extension of three months to lodge a claim for unfair dismissal at a tribunal, giving him until 12 May 2009.

The council then wrote to him on 26 March confirming the decision to dismiss him and stating that he had the right to apply to a tribunal within three months of the date of this decision, giving him the impression that he had until 27 June in which to lodge his claim. His solicitor, Mr Lee, did not notice the mistake and lodged his claim on 27 May, two weeks out of time.

The council argued that his claim should not be allowed to proceed.

Tribunal decision

The tribunal judge was referred by the county council to the case of Dedman v British Building and Engineering Appliances Ltd which states that if a claimant has a “skilled advisor” and they get the date wrong, the claimant is barred from pursuing their claim in a tribunal. The only option left to them is to claim negligence against their advisor.

However, in this case the judge said that it was wrong to interpret that principle too literally and that there could be “wholly exceptional circumstances” that would allow a tribunal to hold otherwise.

The judge decided that the combination of circumstances in this case were exceptional and that, as Mr Entwhistle had brought his claim within a reasonable period of time after the deadline, he should be allowed to proceed.

EAT decision

The EAT agreed that the tribunal judge was right to say that there were situations when a claimant should be allowed to proceed even if their skilled advisor had failed to give the correct advice. For instance if both the claimant and their advisor had been misled by the employer.

In this case, however, the solicitor had simply been negligent. It was true that the Council had written a misleading letter but the tribunal judge had made clear that he thought Mr Lee should have checked the Council’s statement for himself and not taken it on trust.

The question of “reasonable practicability” it said must be judged by what the claimant could have done had they been given the advice “ that they should reasonably in all the circumstances” have been given.

As Mr Lee had been negligent in his advice, it therefore followed that he did not give Mr Entwhistle the advice which he should reasonably, in all the circumstances, have given him.