Employment Flash - 29th January 2010

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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.