Employment Cases Update

Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23

Date published: 21/01/2021

Appeal against the dismissal of a claim which was held to be out of time. Appeal dismissed.

The Appellant resigned his post in May 2017, his EDT being 24 August. Five days prior to his resignation, on 20 May, the Appellant sought to initiate the statutory early conciliation procedure by notifying ACAS of his dispute with the Trust and his intended claim. On 23 May he told ACAS that he was withdrawing his application so that he could wait until he could get representation. On 23 May, ACAS issued an "Early Conciliation Certificate" under section 18A (4) of the ETA 1996 "to confirm that the prospective claimant has complied with the requirement under ETA s18A to contact Acas before instituting proceedings in the Employment Tribunal". The certificate was evidently issued on the basis that ACAS treated the effect of the Appellant's "withdrawal" as being that settlement pursuant to his notification on 20 May was not possible. On 16 November the Appellant was informed by a firm of solicitors that he had until 24 November to bring any claim. They repeated this advice on 24 November. The Appellent did not make a claim until 27 November, 3 days out of time, and he used the ECC number which had been given out back in May, despite the fact that he had withdrawn that application. The ET and EAT dismissed the Appellant's argument that that sequence of events constituted a reasonable excuse for his failure to present his application within the primary time limit and that that was highly relevant to whether it was just and equitable to extend time. He appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal. There were two distinct aspects to the Appellant's grounds. The first concerned the impact of the three days' delay. The second, related to the Appellant's misunderstanding of the position about the ACAS certificate (which he had claimed was a nullity). On the first point, the Court said that the ET Judge clearly had in mind both the respects in which the events of late 2016 were historic and she also had in mind the fact that the Appellant could have complained of them in their own right as soon as they occurred or in May, immediately following his resignation. She did not, rightly, treat this factor as decisive: in fact, she placed more weight on the absence of any good reason for the delay. On the second point, the judge's Reasons showed why she did not regard the misunderstanding of the ACAS certificate as justifying the grant of an extension.

Read the full text of the judgment on BAILII or download the file by clicking the link below.