Two stage test
Labour & European Law Review Weekly Issue 498 30 November 2016
When deciding whether the time limit for hearing a claim should be extended, tribunal judges have to apply a two-stage test. In Tesco Stores Ltd v Kayani, the Employment Appeal Tribunal (EAT) held that tribunal judges must distinguish between the two limbs of the test and take all factors into account, including the adequacy of any advice given by solicitors.
Ms Kayani, a Pakistani national, was dismissed with effect from 12 February 2015 over an issue to do with her right to work in the UK. Although the time limit for lodging a claim ran out on 11 May, she tried to lodge a number of claims on 2 June.
These were rejected because she did not have an Early Conciliation (EC) certificate number and it was 1 September before her claims were ultimately accepted by the tribunal.
Tesco objected on the basis that she was out of time. Ms Kayani argued that a series of circumstances had resulted in the delay.
Holding that the “crucial point in time” was between 29 April and 11 May, the tribunal accepted that Ms Kayani was more pre-occupied with giving birth than with lodging a tribunal claim. Four days after the birth on 11 May, she and her husband were evicted from their rental property. As soon as she was permanently settled in late May Ms Kayani had tried to lodge her claims but these were rejected because she did not have an EC number.
The tribunal decided that as a result of these factors, Ms Kayani could not have been expected to submit her unfair dismissal claim (among others), within the statutory three months but that she had presented them within a reasonable time after that.
In relation to her sex discrimination claim, the test was whether it was just and equitable to extend the time for presenting it. The tribunal held that it should extend the time because of the extent of the difficulties she had faced between April and September when she finally, successfully, lodged her claims.
In upholding the appeal, the EAT made clear that the law requires tribunal judges to consider two things. Firstly, whether it was reasonably practicable to present the claim within three months; and secondly if it was not, to consider whether the claim was nonetheless presented within a reasonable period after that. In this case, it was not clear that the judge had understood the distinction between the two limbs of the test and for that reason alone, the decision could not stand.
In addition, although the judge had found as a matter of fact that Ms Kayani had instructed solicitors before 11 May and that she did not have funds to pay the tribunal fee, he failed to address the quality of the legal advice she had received. Her solicitor had failed to advise her about the possibility of being awarded a remission of the fee. This failure to grapple with the question of whether the solicitors had been at fault was directly analogous to the situation that had arisen in eBay (UK) Ltd v Buzzeo when the tribunal had focused only on the claimant’s pregnancy and the imminent birth of her son in considering the reasonable practicability test, when the role of the solicitors was an equally important factor.
There was also confusion in the judgment about the two separate periods - that prior to the expiry of the three-month period and thereafter - in the analysis of the evidence.
In approaching the second limb of the test, the tribunal had regarded the requirement to state the early conciliation number on a claim form as “technical” when the authorities made clear that it was an essential requirement. His reasoning as to the “just and equitable” test was flawed for similar reasons to those found in the application of the reasonable practicability test.