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Home > News > Unfair Dismissal Time Limit extended where ACAS advised incorrectly

Unfair Dismissal Time Limit extended where ACAS advised incorrectly

01 June 2018 | Nick Jones

Nick Jones, Associate Director and solicitor in GL’s Bristol employment team considers the recent Employment Appeal Tribunal case of DHL Supply Chain v Fazackerley, on the timeframe for an unfair dismissal claim.

A claim for unfair dismissal must be presented within three months of the date of the dismissal. However, a tribunal has a discretion to extend the time available for making the claim if it is determined that it was not reasonably practicable for the claim to have been presented within the three month period.

The case of DHL Supply Chain v Fazackerley was originally heard before the Cambridge Employment Tribunal, which held that it was not reasonably practicable for the Claimant to have presented his claims in time.  The tribunal therefore exercised its discretion to extend the time limit to allow the Claimant to proceed with his claims.  The Respondent, DHL, appealed.

The Facts

The Claimant, F, was dismissed by his employer for gross misconduct with the dismissal being effective from 15th March 2017.  The Claimant submitted an internal appeal against his dismissal and, through no fault of either party, that appeal was not heard until 22nd June 2017.  The Claimant was told that his appeal was unsuccessful.

The Claimant then took advice and commenced proceedings by lodging his employment tribunal claim on 19th July 2017.  By that point the claim was out of time.

During the tribunal hearing to determine whether time should be extended, the Claimant gave evidence that in the days following his dismissal, he had contacted the ACAS helpline for advice. He was advised that prior to taking any other form of action, including tribunal proceedings, he must first exhaust an internal appeal process.  ACAS failed to advise the Claimant of the three month time limit or the need to commence ACAS early conciliation.

The tribunal judge accepted that it was reasonable for the Claimant to have acted upon the advice given to him by ACAS, which was incorrect. The judge found that it was not reasonably practicable for the Claimant to have presented the claim within the three month time limit on the basis that he had taken the word of ACAS that he should await the outcome of the internal appeal process before continuing.

The Appeal

The Employer appealed, asserting that the Employment Judge had failed to properly apply the principles of law. It argued that the tribunal should have considered that the Claimant ought to have asked more questions of ACAS than he did.  The Employer also argued that the tribunal had made an error of law in finding that the reliance on the ACAS advice was sufficient to make it not reasonably practicable to have lodged the claim within time.

The Employment Appeal Tribunal (EAT) rejected the appeal. Whilst it concluded that a different tribunal judge might have taken a different view, it noted that the tribunal had relied upon the correct legal authorities when reaching its conclusion and that the decision of the judge had not been perverse.  The EAT considered that the judge had been entitled to take the view that the advice given by ACAS was erroneous.  

Comment

Quite an odd case on its facts, as it was deemed the failure by ACAS to give the correct advice was sufficient to allow for the extension of time. Had no advice been obtained by the employee, time would not have been extended.

Employers are always advised to check, upon receipt of a claim, to ensure that the claim has been properly presented within the relevant time limit, and to be prepared to argue that claims are not within time should there be facts available upon which an argument can be pursued.  

If you have any queries or issues arising from this article please don’t hesitate to contact either Nick Jones or Cecily Donoghue in our Employment Team.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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