Schultz v Esso Petroleum Co Ltd (1999) IDS Brief 636

The Court of Appeal has reached a landmark ruling which could herald a different approach to unfair dismissal time limits by the judiciary. Courts have applied the rule strictly against late claims, but in Schultz the court took a different and more liberal approach.

Unfair dismissal claims should be lodged in the Employment Tribunal within three months of the date of termination of employment. The time period can only be extended if 'it is not reasonably practicable' to bring the claim in time.

In Schultz v Esso Petroleum, the Court of Appeal had to consider the impact of ill health on whether a claim could have been presented in time.

Mr Schultz was dismissed on 25 July 1996 and applied to the Tribunal on 17 April 1997. Not a very promising delay, and the Tribunal found that it would have been reasonably practicable to lodge the claim in time.

Mr Schultz was suffering from depression and had been too ill to work since August 1994. He was too ill to attend his disciplinary hearing on 15 July, but his solicitors submitted an appeal on 30 July and wrote again in September stating written repre-sentations would follow shortly.

In February 1997 Mr Schultz recovered and his solicitors (not Thompsons we stress) wrote again to Esso in March asking for an appeal and return to work. The employer would not reconsider the decision and so tribunal proceedings were lodged a month later in April.

The original tribunal decided that Mr Schultz was well enough to instruct his solicitors in the Summer of 1996, but his condition deteriorated in the Autumn, crucially in the last 6 weeks before the three month period from dismissal expired.

When he became well again in February 1997, he had delayed submitting his claim for another two months. The tribunal refused to extend time on the ground that it had been reasonably practicable for Mr Schultz to submit his claim in time.

The Court of Appeal took a different view. It decided that the correct approach to whether it was practicable, what could be done, meant what was 'reasonably capable of being done'.

The tribunal also failed to take into account the surrounding circumstances, especially the fact that Mr Schultz had tried to avoid litigation by resolving the dispute by way of the appeal procedure. The court took the view that it was reasonable to use the first weeks after the dismissal to raise the issue internally and he should not be penalised for not having put his claim in then, when he was well enough to do so.

But as always, it is far better to bring the claim to tribunal in time and put the case on hold - "stay" in the jargon - while the appeal procedures are exhausted, than risk losing the right to bring the case because it has been submitted out of time.