Was it unreasonable for solicitors not to spot an error in an ET1 form partially completed by their client before they filed it?
Not necessarily, says the EAT in NE London NHS Foundation v Zhou.
Ms Zhou instructed solicitors to file tribunal claims of whistleblowing detriment and unfair dismissal but, to save costs, she completed the formal parts of the form ET1 herself. But she failed to transcribe the ACAS Early Conciliation certificate number correctly. Her solicitors failed to spot this error before they submitted the claim. The tribunal claim was rejected and the solicitors re-submitted the claim - with the correct EC number - within a day of receiving the tribunal’s notification of rejection. That, however, was outside the limitation period.
Ms Zhou had relied on her advisers. The starting point in these cases is that if those advisers had unreasonably failed to lodge a properly constituted claim in time, under the principle in Dedman v British Building and Engineering Appliances Ltd, an employee will be bound by their unreasonable conduct. But the tribunal considered that here, although the solicitors were at fault, that did not automatically mean their conduct was unreasonable. The tribunal allowed the claim to go ahead.
The EAT held that was a permissible view, given the facts of the case. The tribunal decision displayed no error of approach, and nor was it perverse. What the tribunal failed to do, however, was to engage with the authority of Dedman and explain its reasoning with reference to the principles in that case. The appeal was upheld in that regard only.
Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary.