Time’s up

Ashcroft v Haberdashers Aske’s Boys School

The law says that an unfair dismissal claim can only be lodged outside the three months deadline if it was not reasonably practicable to do so. It was irrelevant if there was an internal appeal pending.

The Employment Appeal Tribunal (EAT) has now said, however, in Ashcroft v Haberdashers Aske’s Boys School, that this rule has effectively been repealed by the dispute resolution procedures.

Basic facts

Mr Ashcroft was dismissed for gross misconduct on April 7 2006, giving him until midnight on July 6 to lodge a tribunal claim. He wrote to the school on 22 April asking for an appeal which was finally heard (after an adjournment requested by Mr Ashcroft) on 29 June.

The school hand-delivered the result of his unsuccessful appeal at about 6pm on July 6, which was (just) within the five working days set out in the school’s policy for giving notice to appellants. That meant that Mr Ashcroft only had six hours to lodge his claim.

He, however, was under the impression that Mr Cole (the solicitor helping him with the appeal) had already lodged his tribunal claim, but soon realised he had done nothing. He then instructed different solicitors who finally lodged his claim on 11 August.

Relevant law

Section 111(2) of the Employment Rights Act says that tribunals cannot consider a complaint if it is presented out of time unless they are satisfied that “it was not reasonably practicable for the complaint” to be presented before that.

Section 15(2) of the 2004 dispute resolution regulations state that if an employee presents a complaint after the normal time limit but had reasonable grounds for believing “when the limit expired that a dismissal or disciplinary procedure …. was being followed in respect of matters that consisted of or included the substance of the tribunal complaint”, then the limit could be extended by three months.

Tribunal decision

The tribunal decided that Mr Ashcroft could have lodged his claim within the time limit, given that he had instructed a solicitor.

The fact that he did not receive the outcome of the internal appeal until six hours before the deadline was neither here nor there (Palmer & Saunders v Southend-on-Sea Borough Council). As there was no appeal pending when the time limit expired, he could not be entitled to an extension.

Mr Ashcroft appealed on two grounds. Firstly that Mr Cole turned out not to be a solicitor; and secondly, that he was entitled to an extension of time under regulation 15(2).

EAT decision

The EAT said that it would not have made any difference to the tribunal’s decision had it known that Mr Cole was not a solicitor as “he did in fact give advice in the employment field and in my judgment must be regarded as having been equivalent to an employment law consultant.”

However, it said that Mr Ashcroft was entitled to an extension of time under section 15(2) because the introduction of the statutory procedures “created a new scenario, such as to overtake the established position since Palmer.”

As the whole point of the regulations was to encourage dispute resolution, the tribunal should have decided that it was not reasonably practicable for Mr Ashcroft to have brought his proceedings before midnight on 6 July “by virtue of the fact that until 6pm he had the anticipated protection of Regulation 15(2), and the express encouragement of the legislation not to bring proceedings pending the outcome of the internal appeal”.

Regulation 15(2) was therefore “predicated upon the assumption that there will not be an application put in to the employment tribunal prior to the expiry of the appeal period. That was its purpose and that is in my judgment its effect.”

The EAT was satisfied, therefore that regulation 15(2) effectively repealed the decision in Palmer.