If a claim is lodged out of time because of a failure by the claimant’s solicitor, then usually it will be rejected because of their unreasonable conduct. In North East London NHS Foundation Trust v Zhou, the Employment Appeal Tribunal (EAT) held that it might not be unreasonable conduct if the claimant instructed the solicitors that she would fill in the application form but failed to do so correctly.
Ms Zhou instructed a firm of solicitors to lodge two tribunal claims on her behalf but agreed that to save costs she would complete the formal parts of the application form (the ET1) herself. However, in the process of doing this, she failed to transcribe the ACAS Early Conciliation (EC) certificate number correctly in that she missed off the last forward slash and final two digits.
As her solicitors also failed to spot the error (and to pay the necessary fee) before submitting her claim, the application was rejected. They then re-submitted the claim - this time with the correct EC number and fee - within a day of receiving the notification of rejection. However, by this point, the limitation period for lodging the claim had expired.
The question for the tribunal was whether it had been reasonably practicable for Ms Zhou to submit her claim in time. It was clear that both she and her solicitors believed they had presented a properly constituted claim in time in that she was confident that her solicitors knew what they were doing; while her solicitors were unaware of the error she had made and thought they could pay the fee online.
The tribunal noted that, if a claimant or her advisers are at fault in allowing the time limit to pass without presenting a claim, then, following the principle in Dedman v British Building and Engineering Appliances Ltd, it cannot be said to have been impracticable for the complaint to have presented it in time.
However, applying the decision in Adams v BT plc (weekly LELR 473) in which the EAT held that tribunals should focus on whether the claimant believed they had presented their claim on time, the tribunal concluded that as both Ms Zhou and her solicitors both believed that a valid claim had been presented in time, it had not been reasonable for them to present a properly constituted claim in time.
The EAT held that the tribunal was correct to focus on Ms Zhou’s state of mind. Viewed objectively, it was clear that she believed that she had lodged a properly constituted claim in time because she had confidence in her advisors. If they unreasonably failed to lodge the claim in time, then according to the Dedman principle, she would be punished for their unreasonable conduct. The question, therefore, was whether her solicitors had acted reasonably or not.
Although they were “unquestionably at fault in failing to check the ET1 thoroughly”, the tribunal was entitled to conclude that this did not automatically mean that their conduct was unreasonable, given that Ms Zhou had expressly “unbundled” the services her solicitors were to provide. Had they checked everything she had done, there would have been no cost savings.
However, it could not be assumed that the case was “on all fours” with Adams, given that the question of the application of the Dedman principle had not been raised in that case. The tribunal should, therefore, have shown that it had engaged with the question whether the solicitors had acted reasonably. As it did not seem to have done so, the EAT allowed the appeal and remitted this issue to the same tribunal for determination.