Was it reasonably practicable for an employee to present a claim for unfair dismissal in time, when erroneous ACAS advice caused the delay?
No, held the EAT in DHL Supply Chain v Fazackerley.
The Claimant was dismissed for gross misconduct effective from 15th March 2017. He took advice from ACAS via its helpline. The advice was to appeal and to exhaust the internal appeal process. But through no-one's fault, the appeal hearing did not take place until 22nd June 2017. Shortly after that date, the Claimant took advice and commenced proceedings by lodging an ET1 on 19th July 2017. By then it was out of time.
The advice given by ACAS might not have been erroneous in the broad sense in that it is good advice to exhaust internal appeal procedures (which are normally dealt with speedily). However, as an unqualified statement, without regard to limitation periods, it was wrong. The Employment Judge held that it was therefore not reasonably practicable in those circumstances for the claim to have been brought within the statutory period.
The EAT agreed. The EAT pointed out that a different judge might (legitimately) have taken a different view. But here, the Employment Judge had engaged with the relevant legal authorities. So to disturb his decision, it would have to be shown it was perverse. And perversity involves a high hurdle which had "not nearly been reached" in the present case.
Of course, it is well established that if an employee engages a solicitor and fails to meet the time limit because of the solicitors' negligence, this will (almost always) defeat an attempt to argue that it was not reasonably practicable to make a timely complaint. The position is different where the advice is from a government agency (such as, back in the day, Department of Employment officers) or even a CAB adviser, where an holistic view may be taken.
In the present case, it was not reasonably practicable under the circumstances to present the claim in time. Once the Claimant realised his rights, he took further advice and lodged his claim promptly. Therefore the claim could proceed.
Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary.
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