[Thanks to Simon McCrossan, squatter at New Walk Chambers, for preparing this case summary]
No, not when the Claimant was entirely at fault for the late presentation of her claim, says the EAT in DeSouza v Manpower UK Ltd.
The Claimant's employment was terminated with effect from 21 May 2009, according to both her dismissal letter and her P45. She saw a solicitor both before and after her dismissal. Her ET1 was presented to the tribunal on 21 August 2009, mistakenly citing her effective date of termination as 23 May 2009. Whilst no letter before action, nor written confirmation of instructions were evident, the Claimant conceded that in her earlier meetings she had been legally advised of relevant deadlines but had initially declined to authorise the service of the draft ET1 prepared in June 2009 due to personal financial concerns.
The EAT accepted that the guidance cited in London Borough of Southwark v Afolabi was a relevant factor, but in directing itself to British Coal v Keeble, the EAT held that the tribunal had incorporated this guidance within its decision. Given the initial findings that the Claimant was entirely at fault, unlike her lawyer who was held to be free from error, no exceptional reasons for the delay arose on the facts and the EAT declined to substitute its view for that of the employment tribunal and dismissed the appeal. The EAT also noted that the first instance decision not to extend time may be construed as having been principally determined on the grounds of the Claimant's fault, rather than the balance of prejudice between the parties.