Unfair dismissal complaint ‘not reasonably practicable’ despite lack of medical evidence

By Jack Feeny

Jack Feeny reports on the EAT’s recent ruling in Norbet Denressangle Logistics Ltd v Hutton (UKEAT/0011/13/B).

The EAT, Mr Justice Langstaff sitting alone, has recently looked again at the application of the ‘reasonably practicable’ test in circumstances where a claim for unfair dismissal was lodged after the three month deadline had expired.

Background

In Norbert Dentressangle Logistics Limited v. Hutton UKEATS/0011/13/BI the claimant presented his unfair dismissal claim six weeks after the time limit had expired. The claimant said that he ‘had not been able to function sufficiently’ to bring a claim within the three month limit. He provided no medical evidence in support of this contention, relying only on his oral evidence at the hearing. He accepted that he had always been aware of the time limit and had been able to deal with matters relating to his grievance in the first few weeks after his dismissal.

EAT’s ruling

Whilst expressing reservations, Mr Justice Langstaff upheld the first instance’s judge’s decision to allow the claim to be presented out of time. He commented that although medical evidence was preferable the judge had been able to assess the claimant’s credibility as a witness and was entitled to accept his evidence that he had been unable to lodge the claim any earlier.  Of more general application, it is helpful that Mr Justice Langstaff accepted that when examining a claimant’s actions during the three-month period a distinction can properly be drawn between the earlier weeks and the end of the period, the latter being more critical in terms of identifying barriers to the claimant’s ability to lodge a claim form.

Observation

The decision is, of course, highly favourable towards claimants but Mr Justice Langstaff was at pains to point out that the judge’s assessment of the claimant’s mental incapacity was individual to that case and, in his experience, it would be rare for most judges to accept such evidence from a claimant without medical evidence in support.

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