Section 111(2)(b) of the Employment Rights Act 1996 (ERA) states that claimants must lodge their tribunal complaint within three months unless it was not “reasonably practicable” to do otherwise. In Cygnet Behavioural Health Ltd v Britton, the Employment Appeal Tribunal (EAT) held that it was the claimant’s responsibility to appraise himself of the three-month time limit.
Mr Britton was working out his probationary period as a senior physiotherapist when his employer referred him on 22 October 2019 to the Health and Care Professions Council (HCPC) because of concerns about his fitness to practice (FTP). He was dismissed two days later. Mr Britton lodged a claim for automatic unfair dismissal on the basis that he had made protected disclosures.
Having contacted the ACAS helpline, he completed the online referral form on 11 November in order to trigger the early conciliation process. About the same time, he spoke to an ACAS adviser, Steve Molloy, who told him that once he had received his certificate, the clock would start running for lodging his claim. Mr Britton was not, however, aware at this point that he had to do so within three months from the effective date of termination.
As Mr Britton did not present his claim until 29 April 2020 - 62 days outside the primary limitation period - the tribunal first had to decide under section 111(2)(b) ERA whether it had been “reasonably practicable” for him to have presented the claim on time.
The employment judge decided that the substantive reason for Mr Britton’s failure to comply with the limitation period was his poor mental health and his ignorance of the time limits. He had limited mental and physical energy and his primary focus was on the regulatory HCPC proceedings. In addition, his dyslexia meant that it took him more time to read and process information than non-disabled people. As a result, it had not been reasonably practicable for him to have presented his claim by 22 February 2020.
Cygnet Healthcare appealed on the basis that the tribunal’s decision to extend time was perverse.
Although it was not perverse for the tribunal to find that Mr Britton was unaware of the time limit prior to 22 February 2020, the EAT held that it was perverse to find that his mental health problems, his dyslexia and his focus on the FTP investigation meant that it was not reasonably practicable for him to make himself aware of them. On the contrary, it was not only reasonable to expect someone who was thinking about bringing a claim for unfair dismissal to appraise themselves of the relevant time limits, it was their responsibility to do so.
Nor was there any explanation in the tribunal judgment as to why, notwithstanding his dyslexia and mental health problems, Mr Britton had been able to do a whole range of other things in the period between October 2019 and February 2020. These included appealing against his dismissal, contacting ACAS, working as a locum, moving house and engaging with the FTP proceedings. Indeed, it seemed that the only thing that he could not do was to find time to identify the time limit. This, said the EAT, flew “in the face of reason”. However busy he might have been in his day jobs and with the regulatory investigation, it was “the work of a moment” to ask somebody about time limits or to look them up in a search engine.
The EAT, therefore, overturned the tribunal’s decision and dismissed Mr Britton’s claim on the basis that it had been presented out of time.