The Claimant was dismissed from his position and contacted Citizens Advice.  A local Law Centre was recommended to him and, after filling in the relevant forms with a representative, he was of the belief that they would take his case forward. It emerged, in fact, that no claim for unfair dismissal was presented until after the time limit had expired.

The Claimant presented his claim alleging unfair dismissal and race discrimination to the tribunal and requested an extension of time based on his solicitors' negligence. It was argued that the claimant had done everything he could to present the claim in time.

While the EAT expressed sympathy for the Claimant’s position, it relied on the strict approach set out in the previous case law. The lower tribunal had reached a finding of fact that it was ‘reasonably practicable’ for the Claimant to present his unfair dismissal claim in time and the EAT held that it had not erred in law by doing so.

The appeal was dismissed, but the tribunal allowed the race discrimination claim to proceed to full hearing for determination of the time extension issue.

Practical Lessons

This seems a harsh outcome, and the EAT recognised that the claimant did nothing wrong. However, it relied on the Court of Appeal authority of Marks & Spencer Plc v William-Ryan,which states that ‘the adviser's fault will defeat any attempt to argue that it was not reasonably practicable to make a timely complaint.’ Therefore, individuals who know they have a claim and leave it in the hands of specialist advisers will suffer the consequences if it is presented out of time.

Nonetheless, the claimant’s race discrimination claim was allowed to proceed to full hearing for determination of whether it would be ‘just and equitable’ to extend time.

The different tests can obviously produce starkly different outcomes for Claimants and the disparity also exists in Northern Ireland: Art.65(7) of the Race Relations (NI) Order 1997 contains the more relaxed ‘just and equitable’ test and the more stringent ‘reasonably practicable’ test is contained in Art.28(2)(b) of the Employment Rights (NI) Order 1996.
https://assets.publishing.service.gov.uk/media/5cdbda9c40f0b66b0e098b3d/Mr_R_Pora_v_Cape_Industrial_Services_Ltd_UKEAT_0253_18_BA.pdf