Nkechi Leeks v Royal Marsden NHS Foundation Trust
[2024] EAT 178
Jacqueline Cross v NHS Somerset Clinical Commissioning Group
3 January 2024
[2024] EAT 20
Employment Appeal Tribunal
A nurse missed the deadline to sue her former employer for unfair dismissal because she misunderstood advice from ACAS. A judge said her mistake wasn't reasonable, but a higher court disagreed, saying the judge made mistakes in their decision and sent the case back to a different judge to decide again.
Key Facts
- •Claimant, a nurse, resigned from her employment with the respondent NHS Somerset Clinical Commissioning Group in April 2021.
- •Claimant believed, after a phone conversation with an ACAS officer, that she could await her grievance outcome before starting tribunal proceedings.
- •Due to a delay in the grievance response, the conciliation certificate expired, and the claimant's unfair dismissal claim was out of time.
- •Employment Judge held the claimant's mistaken belief was unreasonable, dismissing her claim.
- •Claimant appealed, arguing the Judge erred in considering the reasonableness of her belief.
Legal Principles
Section 111(2) Employment Rights Act 1996 allows the tribunal to extend time limits if it was not reasonably practicable for the complaint to be presented within the initial three-month period.
Employment Rights Act 1996, section 111(2)
In determining 'reasonable practicability,' tribunals must consider the circumstances and whether the claimant or their advisors were at fault for the delay. A genuine but mistaken belief can be a factor, but its reasonableness must be assessed.
Dedman v British Building and Engineering Appliances Limited [1974] ICR 53; Porter v Bandridge Limited [1978] ICR 943; Walls Meat Company v Khan [1979] ICR 52
The EAT will not overturn factual findings of a tribunal unless there's an error of law; the EAT should only interfere if the tribunal's conclusion is irrational, offends reason, or is plainly wrong.
Stewart v Cleveland Guest (Engineering) Limited [1996] ICR 535
The EAT must read the judgment as a whole and base its assessment on overall findings, without over-analyzing particular passages.
Edwards v Everard [2023] EAT 61
While tribunals should apply the principles of section 111(2) fairly, there is no general duty to be liberal in their application; time limits are strict, and exceptions must be properly construed.
Cygnet Behavioural Health Limited v Britton [2022] EAT 108
Outcomes
Appeal allowed.
The Employment Judge's decision was flawed due to errors in reasoning and fairness. The Judge considered irrelevant factors (absence of reinstatement claim), made findings unsupported by evidence, and criticised the claimant for lack of explanation without giving her the opportunity to provide one.
Case remitted to a different tribunal for rehearing.
To ensure a fair rehearing, given the errors in the original judgment and to avoid the appearance of bias.