Employment Flash - 29th January 2010
Time for bringing a claim: a legal representative's faults are not the faults of the client...
Benjamin-Cole v Great Ormond Street Hospital [2010] UKEAT 0356 09 DA
B-C's ET1 for victimisation was lodged 4 hours and 20 minutes out of time. B-C's representative (I) was a volunteer employment adviser for a charity who had had training and extensive experience in employment law. B-C had consulted I about her impending redundancy prior to that redundancy taking effect. On 10.11.08 an ET1 claiming discrimination was presented in time. No later than 11.11.08 I was aware of the termination date for B-C's employment, 17 days remained to put in a claim for unfair dismissal. Although serious matters of a family nature did crop up for I between 11.11.08 and 28.11.08 he attended the first day of a 5 day hearing and obtained an adjournment and he had by telephone obtained the adjournment of another case due to take place 2.12.08, both on account of his personal circumstances. B-C had been reluctant to press I because of his personal situation but had the day before time expired managed to contact him and remind him of the deadline.
Before the ET, B-C did not give evidence but I did. I did not accept that a protective claim form could have been presented in time which contained only an outline of the claims. I took the view that the ET would either have rejected the complaints or struck them out for want of particulars. As regards that view, I was in error. There was nothing to show that I had ever asked B-C to prepare or lodge her own claim.
The ET refused to extend time in relation to both the unfair dismissal and the victimisation claim. In failing to extend time in relation to the victimisation claim the EAT decided the ET had erred. Time limits are exercised strictly in employment cases, and it is for C to convince the ET that it is just and equitable to extend time, there is no presumption that time be extended (Roberston v Bexley Community Centre [2003] IRLR 434; it is a wide discretion which an appeal court will only interfere with if the ET has erred in principle or was otherwise plainly wrong).
In part the ET erred because the EJ had placed too much reliance on B-C having a remedy against I, and that the ET was placing I's faults on B-C. As a general rule, the fault of a legal adviser was not to be attributed to a C in circumstances where proceedings were not commenced in time, Virdi v The Commissioner of the Police for the Metropolis [2007] IRLR 24 at 39 and see Steeds v Peverel Management Services [2001] EWCA Civ 419 in relation to extensions of time under s.33 Limitation Act 1980, although the existence of a claim against C's representatives is not an irrelevant factor and it has been said that it "must be a highly relevant consideration" (Thompson v Brown Construction (Ebbw Vale) Ltd [1981] 1 WLR 744, Lord Diplock). To visit the representative's failure to enter proceedings in time on C is to present the respondent with a windfall (Chohan v Derby Law Centre [2004] IRLR 685).
A layperson, B-C, had placed the matter in the hands of someone held out to be competent and skilled. It is difficult to see how B-C could be at fault for neglect or misunderstanding on his part or be expected to take steps that she had retained him to to take.
NB: the EAT observed that it was unusual for the representative to give evidence before the ET and not C; in the absence of evidence to indicate otherwise, the EAT would infer that where a layperson is represented by someone holding themselves out as capable of doing so then it would be the representative's guidance that would determine the evidence to be called.
Park Court Chambers
16 Park Place
Leeds
LS1 2SJ
Tel: 0113 243 3277
Fax: 0113 242 1285
Latest News
- CPS Panels (20th January 2012)
- First Direct Access Criminal Case (19th January 2012)
- Paul Greaney QC acts on behalf of the Football Association in the Luis Suarez case (3rd January 2012)
- Park Court tenant secures dismissal of murder allegation (11th November 2011)
- West Yorkshire Panel for Legal Services (3rd August 2011)
- Summer Party (3rd August 2011)
- Leeds Credit Union (3rd August 2011)
- General Medical Council (3rd August 2011)
- New Chief Executive (3rd August 2011)
- Adam Birkby secures acquittal of Newcastle United Captain (15th April 2011)
- 6 members of chambers appointed to the Equality & Human Rights Commission panel for counsel (11th January 2011)
- Chambers & Partners UK 2011 - Park Court Chambers rankings (9th November 2010)
- Sam Green, Catherine Knowles and James Normington appointed to Regional Panel of Junior Counsel to the Crown (8th November 2010)
- Afshan Nadeem joins Park Court from Palmyra Chambers (1st November 2010)
- Park Court Chambers wins the McCormicks Quiz for the second year (11th October 2010)
- Election of Head and Deputy Head of Chambers (5th October 2010)
- Kirsten Mercer wins the Louise Godfrey Memorial Moot 2010 (15th September 2010)
- Jo Pickersgill takes part in the Great Yorkshire Run in aid of the Yorkshire Young Achievers Foundation (10th September 2010)
- Legal 500 2010 - Recommendations (8th September 2010)
- Kirsten Mercer successfully completes pupillage (1st September 2010)
- Park Court Chambers nominated for Chambers Bar Awards - Regional Set (24th August 2010)
- Discrimination Law Review by Ceri Widdett (14th May 2010)
- Article in Archbold by Simon Jackson QC: "Defining the terms "Employer/Employee in the Context of the Health & Safety at Work Act 1974 (14th May 2010)
- Steven White represents Leeds Solicitor in successful sex discrimination challenge to redundancy termination (14th May 2010)
- Laurence Saffer appointed Judge of the First-tier Tribunal on the Health Education and Social Care Chamber(26th April 2010)
- Simon Phillips QC joins Simon Bourne-Arton and Tom Bayliss on the SFO Queen's Counsel List (9th April 2010)
- Simon Phillips and Paul Greaney appointed Queens Counsel (23rd March 2010)
- Simon Anderson joins Park Court Chambers from 15th February 2010 (28th January 2010)
- Simon Bourne-Arton and Tom Bayliss appointed to the SFO Queen's Counsel List (13th January 2010)
- Tart-athon held at Park Court Chambers - £615 raised for charity (24th November 2009)
- Paul Greaney named as junior crime barrister of the year at the Chambers Bar Awards 2009. Click here to see him accept his award from Robert Smith QC (Head of Chambers) and Jo Pickersgill (Senior Clerk)(16th November 2009)
- Park Court Chambers takes the prize in the McCormicks Halloween Quiz (2nd November 2009)
- David Young and Dapinder Singh joins Park Court Chambers as Associate Tenants (9th October 2009)
- Stephen Uttley secures acquittal of professional rugby league player (9th October 2009)
- Paul Greaney named as Criminal Law Junior of the Year at Chambers Bar Awards 2009 (2nd October 2009)
- Park Court Chambers sponsors the Niche Law Firm Award at the Yorkshire Lawyer Awards 2009 (1st October 2009)
Events
Employment Seminar Programme 2011
Please click here to see the programme of employment seminars for 2011.
Family Seminar Programme 2011
Please click here to see the programme of family seminars for 2011. PLEASE NOTE THAT THE SEMINAR DUE TO TAKE PLACE ON 18TH OCTOBER 2011 HAS BEEN CANCELLED
Should you wish to book a place on any of the above seminars please contact Karen Wade, Chambers Administrator by email at karen@parkcourtchambers.co.uk or tel 0113 203 5506.


