The Court of Appeal has handed down its decision in Marks & Spencer v Williams-Ryan. It upheld the tribunal's (and the EAT's) decision that it was not reasonably practicable for Mrs Williams-Ryan to present her unfair dismissal claim within three months, and therefore that she should have an extension of time.
Mrs Williams-Ryan was dismissed. A CAB advised her to exercise Marks & Spencer's internal appeal procedure, but did not tell her to lodge a tribunal claim. Her letter of dismissal told her she could complain to a tribunal, but did not tell her of the three-month time limit.
The internal appeal took 3.5 months (due to M&S's delay), and she lodged her ET complaint four months after the dismissal.
The Court of Appeal, after thoroughly reviewing the authorities on late presentation of claims, held:
although an employee is bound by the negligence of their solicitor (and cannot have time extended for claiming unfair dismissal if the delay is due to the solicitor's negligence), it is less clear that an employee is bound by the negligence of a CAB advisor;however, since the CAB advisor did not even raise the issue of unfair dismissal (let alone give wrong advice on time limits), no issue of negligence arose. The Court of Appeal did not deal with the argument that it was the very failure to raise the issue of unfair dismissal that might be said to be negligent. Nor did the Court of Appeal deal with the fact that M&S had told the employee of the right to claim unfair dismissal (albeit not about the time limit);that being the case, there was no rule of law requiring the tribunal to find that it was not 'not reasonably practicable' for the employee to present her claim within three months, and so the employment tribunal's decision could not be categorised as perverse.
Although this decision is useful for its review of the authorities, practitioners should be cautious about relying on its decision to promote an extension of time if similar facts crop up again. It is an unusual decision and is (as the Court of Appeal say) heavily influenced by the fact that, if M&S had not been guilty of delay in going through its own internal appeal procedure, Mrs Williams-Ryan would undoubtedly have presented her claim within the three month time period.