TIME LIMIT

Marks and Spencer plc v Williams-Ryan: [2005] EWCA Civ 470

CA: Lord Phillips of Worth Matravers MR, Latham and Keene LJJ: 19 April 2005

The claimant employee, a part-time sales assistant, was summarily dismissed for gross misconduct on 17 April 2003 following a disciplinary hearing into an incident on the shop floor. At the earliest opportunity she telephoned the Citizens Advice Bureau. In a brief conversation she was advised to exhaust the employer's internal appeal procedure, but not told of her right to complain to an employment tribunal. On 24 April a letter of dismissal was sent informing her of the internal appeal procedure and of her right to complain to an employment tribunal, for which she would need independent advice. The information she received from the employer did not mention the time limit for complaints to the employment tribunal. She proceeded with the internal appeals procedure, which concluded by letter of 31 July, received several days later, confirming her dismissal. On 20 June she had obtained a blank form and information concerning a complaint to an employment tribunal, but she did not find time to study the documents due to the pressure of a teacher training course. The three-month time limit for presenting her complaint to the employment tribunal under section 111(2) of the Employment Rights Act 1996 expired on 16 July. The tribunal received her complaint of unfair dismissal on 15 August and concluded that it had jurisdiction to hear the complaint because it had not been reasonably practicable for her to present it before the time limit expired and that it had been presented within a reasonable time thereafter. The Employment Appeal Tribunal dismissed the employer's appeal.

The employer appealed.

The Court of Appeal held:
Section 111(2) of the Employment Rights Act 1996 should be given a liberal interpretation in favour of the employee, and, in accordance with that approach, when deciding whether it was reasonably practicable for an employee to make a complaint to an employment tribunal, regard was to be had to what, if anything, the employee knew of the right to make a complaint and the time limit and what the employee should have known, had she acted reasonably in all the circumstances. The vital question of fact was whether the employee could reasonably have been expected to be aware that there was a time limit for making a complaint to the tribunal. On the facts, the Citizens Advice Bureau did not advise the employee that she need not file her application to the employment tribunal until the internal appeal proceedings were concluded, which belief on the part of the employee was the basis of the tribunal's decision; but the findings made by the tribunal supporting the conclusion that such a belief was reasonable, namely the advice to get on with her internal appeal, insufficient and misleading advice from the employer and the pressure the employee was under from her teacher training course, while generous to the employee, were within the range of findings the tribunal could properly make on all the facts.

The appeal was dismissed.

Appearances: Catherine Callaghan (Beachcroft Wansbroughs) for the employer; Timothy Pitt-Payne (Free Representation Unit) for the employee.